Bangalore District Court
Establishing His Case And Need For ... vs No.1 Has Not Adduced Any Evidence On Its ... on 16 July, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 16th day of July, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.2619/2015
Junjappa, ..... PETITIONER
S/o. Late Motappa,
Aged about 47 years,
R/at No.42, Chikkanahalli,
Thammanayakanahalli Post,
Anekal Taluk,
Bangalore Dist.
(By Sri. P. Suresh, Adv.,)
V/s
1. HDFC ERGO General Insurance ..... RESPONDENTS
Co. Ltd.,
H.M, Geneva House,
No.14, 1st Floor,
Cunningham Road,
Bangalore-560052.
Represented by its In-charge Manager.
(Insurer of the vehicle bearing
Reg.No.KA-02-Y-7304)
(Policy No.2320200922884200000)
2 M.V.C.NO.2619/2015
(SCCH-7)
2. M.D. Gowda,
S/o. Hanumanthappa,
Major in Age,
No.11, Ashwini Enterprises,
2nd Cross, 2nd Main,
Bovi Palya,
Mahalaxmipuram,
Bangalore-560086.
(R.C. Owner of the vehicle)
3. Shamanna. S.,
Major in Age,
R/at No.1, Denne Palya,
Gottigere Post,
Bannerghatta Main Road,
Bangalore-560083.
(Present owner of the vehicle)
(R1- By Sri. Y.P. Venkatapathi, Adv.,)
(R2 and R3 By Sri. Harsha, Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 to 3 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 13,00,000/- with interest at the rate of 12% per annum from the date of accident till deposit.
2. The brief averments of the Petitioner's case are as follows;
3 M.V.C.NO.2619/2015(SCCH-7)
a) On 06.02.2015 at about 8.30 a.m., he was going in a Motor Cycle bearing Registration No.KA-51-EC-3814 near Haragadde-Vg, Kigani-Hobli, Anekal Tq, Bangalore Rural-Dist, very carefully, cautiously and observing traffic rules, at that time, all of a sudden, Yamaha RX Motor Cycle bearing Registration No.KA-02-Y-7304, riding by its rider at high speed in a rash and negligent manner, so as to endanger to human life and dashed against him and his vehicle. Due to the impact, he fell down and sustained fracture of right femur bone open type fracture of supracondylar of left femur bone and other injuries all over the body.
b) Immediately, he was shifted to Vijayashree Multi- Speciality Hospitals, Jigani - Anekal, where, he was taking first- aid treatment, then, he was shifted to Sanjay Gandhi Institute of Trauma and Orthopedics, Bangalore, where, he was taken treatment from 06.02.2015 to 23.03.2015, as an inpatient. He undergone several investigations, after that, he underwent ORIF with IMIL nail and ORIF with LCP implants fixed surgery to fractured parts and several bottles of blood transfusion done and treated the other injuries. At the time of discharge, he was advised bed rest, strict NWB, to use crutch walker and other treatment and after discharge, he was taking follow-up treatment. Then, he was admitted to same Hospital and taken treatment from 05.05.2015 to 18.05.2015 as an inpatient. He undergone several investigations, after that, he underwent bone grafting surgery and treated the injuries. At the time of discharge, he was advised bed rest, strict NWB to use crutch walker and follow-up treatment.
4 M.V.C.NO.2619/2015(SCCH-7) After discharge, till today, he is taking follow-up treatment as per the advise of the Doctor. He has spent Rupees 80,000/- for medical expenses, Rupees 30,000/- towards food and nourishment and incurred Rupees 30,000/- towards conveyance expenses.
c) He was working as a welder and earning Rupees 12,000/-.
d) Due to accidental injuries, he is unable to attend to his work. Therefore, he sustained loss of income from the date of accident. Prior to accident, he was hale and healthy. Due to accidental injuries, he is unable to walk, run, stand and sit, unable to lift weight. He is getting pain at the fractured sites and other injured parts of the body. He always depends on the others for regular and day to day activities. He engaged an attendant during his treatment period. Thus, he suffered permanent disability. He sustained loss of happiness, physically and mentally, loss of amenities, loss of future earning capacity and prospers, decreasing in life span and also sustained pain and agony.
e) The Jigani Police, Bangalore District, have registered a case in Crime No.14/2015 as against the rider of Yamaha RX Motor Cycle bearing Registration No.KA-02-Y-7304, for the offences punishable under Section 279, 337 and 338 of IPC. Therefore, this accident was occurred due to sole rash and 5 M.V.C.NO.2619/2015 (SCCH-7) negligent riding of the said offending Yamaha RX Motor Cycle by its rider.
f) The 2nd Respondent is the R.C. Owner and 3rd Respondent is the present owner and same has been insured with the 1st Respondent and the Insurance Policy is in force as on the date of accident. Therefore, all the Respondents are jointly and severally liable to pay compensation. Hence, this petition.
3. In response to the notice, the Respondent No.1 has appeared before this Tribunal through its Learned Counsels. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 05.04.2016 passed on I.A.No.II, the written statement filed by the Respondent No.1 is taken on file.
4. In response to the notice, the Respondents No.2 and 3 have appeared before this Tribunal through their Learned Counsel. But, inspite of giving sufficient opportunities, the Respondents No.2 and 3 have not filed the written statements.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) At the very out-set, the petition is not maintainable either under law or on facts. The very averments of the petition indicate that, the Petitioner is trying to suppress some of the facts and has filed the petition and not with clean hands. Hence, none of the claims and allegations of the Petitioner are admitted, except 6 M.V.C.NO.2619/2015 (SCCH-7) that, the policy was issued against the said Motor Cycle bearing Registration No.KA-02-Y-7304. Unless the Petitioner proves the insurable interest and continuation of the rights and interest of any one of the II and III Respondents is proved, as on the alleged date and time of the alleged accident, it has no obligation of any indemnification under the said policy.
b) The policy of insurance against the insured Motor Cycle was issued subject to the terms and conditions of the policy and the insured, i.e., III Respondent and the alleged rider was/is obligated to satisfy and act in accordance with Sections 3, 5, 15 of M.V. Act, 1988 and Rule 3 of the Central Motor Vehicles Rules and obligation of it, shall be in accordance of the defences available to it under Section 147 and 149 of the said Act.
c) The Petitioner is put to strict proof that, the alleged rider of the insured Motor Cycle and himself had valid and effective driving licence to drive the class of the vehicles and that, they were not disqualified to drive at the time of alleged accident.
d) Without prejudice, it humbly prayed to permit it to avail all or any of the defences available to the insured, under the circumstances enunciated under Section 170 of the M.V. Act, 1988 and to file either additional written statement or to amend the written statement, as the copies of the documents, on which, the Petitioner would rely are not made available to it and alleged facts, stated in the petition are specifically disputed.
7 M.V.C.NO.2619/2015(SCCH-7)
e) If the alleged cause of action is presumed to be true, the insured, the III Respondent, has not reported the alleged accident or cause of action, both as required M.V. Act and as per the contract to it and has breached the terms and conditions of the policy and hence, there is no obligation of indemnification against it, in respect of the alleged liability and hence, the petition is liable to be dismissed as against it. The jurisdictional Police also have not acted as required under M.V. Act. If the alleged claims of the Petitioner are presumed to be true, hence, it is unable to file comprehensive written statement and prays to permit it to suitably amend the written statement, if necessary at later stage.
f) The Petitioner is put to strict proof that, he has not filed any other petition/application before any other Court/Tribunal/Authority in respect of the same alleged accident as against them and the present petition is maintainable.
g) No interest is required to be granted, in the event of the Petitioner establishing his case and need for further treatment and any amount is granted towards future medical expenses and if the Petitioner delays the proceeding, no interest may be granted for the period delayed by him and to restrict the rate of interest to 6% if award is passed. Hence, prayed to dismiss the petition.
6. Based on the above said pleadings, I have framed the following Issues;
8 M.V.C.NO.2619/2015(SCCH-7) ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent riding of the Yamaha RX Motor Cycle bearing Reg.No.KA-
02-Y-7304 by its rider and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
7. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.23. On the other hand, the Respondent No.1 has not adduced any evidence on its behalf.
8. Heard the arguments.
9. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is entitled
for compensation of Rupees
7,80,933/- with interest at
the rate of 8% p.a.
(excluding future medical
9 M.V.C.NO.2619/2015
(SCCH-7)
expenses of Rupees
20,000/-) from the date of
the petition till the date of
payment, from the
Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
10. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, on 06.02.2015 at about 8.30 a.m., he was going in a Motor Cycle bearing Registration No.KA-51-EC-3814, near Haragadde Village, Jigani Hobli, Anekal Taluk, Bangalore Rural District, very carefully, cautiously and observing traffic rules, at that time, all of a sudden, Yamaha RX Motor Cycle bearing Registration No.KA-02-Y-7304, riding by its rider at high speed, in a rash and negligent manner and dashed against him and his vehicle. He has further stated that, due to the impact, he fell down and sustained fracture of right femur bone, open type fracture of supracondylar of left femur bone and other injuries all over the body. He has further stated that, after the accident, immediately, he was shifted to Vijayashree Multi Speciality Hosptial, Jigani, Anekal, wherein, he has taken first-aid treatment and then, he was shifted to Sanjay Gandhi Institute of Trauma and Orthopedics, Bangalore, wherein, he was taken treatment from 06.02.2015 to 23.03.2015 as an inpatient. He has further stated that, the Jigani Police, Bangalore District have registered a case in Crime No.14/2015 as against the rider of the 10 M.V.C.NO.2619/2015 (SCCH-7) Yamaha Rx Motor Cycle bearing Registration No.KA-02-Y-7304 for the offences punishable under Section 279, 337 and 338 of IPC and therefore, this accident was occurred due to sole rash and negligent high speed riding of the said offending Yamaha RX Motor Cycle by its rider.
11. No doubt, the Petitioner has not produced the authenticated documents relating to the Motor Cycle bearing Registration No.KA-51-EC-3814, wherein, he was proceeding at the time of accident. In this regard, he has stated in his cross- examination that, the Motor Cycle bearing Registration No.KA-51- EC-3814, wherein, he was proceeding is belonging to him and the said Motor Cycle was having valid Insurance Policy at the time of accident. He has further stated that, now, he is not remembering the name of the Insurance Company, which issued Insurance Policy to his Motor Cycle at the time of accident. He has further stated that, the width of the road, on which, the accident was taken place was 15 feet. He has further clearly admitted that, there was head on collusion in between his Motor Cycle and the offending Motor Cycle and in the alleged accident, the front portions of both the Motor Cycles were damaged. He has further stated that, after the accident, he fell down on the right side of the road. Further, though the P.W.1 in his cross-examination has stated that, his relative Munikrishna has lodged a complaint before the Police about the accident and he has no hurdle to examine him in the present petition. The Petitioner did not care to examine the complainant in the present petition to consider his case. Further, the Petitioner has not examined any of the eye 11 M.V.C.NO.2619/2015 (SCCH-7) witness of the said road traffic accident, which alleged to caused to him.
12. But, based on the above said grounds as well as the evidence, which is elicited from the mouth of P.W.1 by the Respondent No.1, it cannot be thrown away the above said oral version of P.W.1, which has been stated by him, in his examination-in-chief, as, to corroborate his case as well as his oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Injured Statement of Sri. Junjappa S/o, Late Motappa, i.e., him, Ex.P.4 Further Statement of Sri. Munikrishna S/o. Late Yellappa, Ex.P.5 Spot Panchanama, Ex.P.6 MVI Report, Ex.P.7 Charge Sheet, Ex.P.8 Wound Certificate, Ex.P.9 Case Summary and Discharge relating to Sanjay Gandhi Hospital, Ex.P.10 Discharge Summary relating to Sanjay Gandhi Hospital, Ex.P.11 Outpatient Record, Ex.P.12 CT Scan Report, Ex.P.13 Lab Reports 5 in numbers, Ex.P.14 Radiological Reports 6 in numbers, Ex.P.15 Driving Licence relating to M.Junjappa S/o. Motappa, i.e., him, Ex.P.20 Photographs 5 in numbers and Ex.P.21 CD relating to Ex.P.20 Photographs, which clearly disclosed that, at the time of accident, the Petitioner was having a valid and effective driving licence to ride the Motor Cycle and the entire negligence is on the part of the rider of the offending Motor Cycle, which dashed to the Motor Cycle of the Petitioner bearing Registration No.KA-51-EC- 3814, which was proceeding on the left side of the road and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and with 12 M.V.C.NO.2619/2015 (SCCH-7) a history of road traffic accident, he was admitted in Sanjay Gandhi Institute of Trauma and Orthopedics to take treatment to the accidental injuries and by admitting as an inpatient from 06.02.2015 to 23.03.2015, i.e., for 46 days and from 05.05.2015 to 18.05.2015, i.e., for 14 days, totally for 60 days, he took treatment to the said accidental injuries, which is clear from the following discussion. Furthermore, the P.W.1 in his cross- examination has also clearly stated that, at the time of accident, he was riding the said Motor Cycle and was proceeding from his house towards his working place at Haragadde Village and the distance in between the accidental spot and footpath was 1 ½ -2 ft. and in the accidental spot itself, he came to know that, he had sustained injuries in the accident and he has sustained injuries on his both leg. He has further clearly stated that, he was shifted to Vijaya Shri Multi Specialty Hospital and no operation was conducted in the Hospital to him and thereafter, he was shifted to Sanjay Gandhi Hospital and he was admitted in the said Hospital for 1 ½ months and he underwent operation in the said Hospital during the course of treatment. Further, though the Respondent No.1 by filing the written statement has seriously contested the case of the Petitioner, to consider its defence, it has not adduced any evidence on its behalf. Further, though the Respondents No.2 and 3, who are the previous and present owners of the offending Motor Cycle bearing Registration No.KA-02-Y-7304, respectively, they appeared before this Tribunal through their Learned Counsel, inspite of giving sufficient opportunities, they have not filed the written statement. The non-filing of the written statement by the Respondents No.2 and Respondent No.3 clearly implies that, they 13 M.V.C.NO.2619/2015 (SCCH-7) have indirectly admitted the entire case made out by the Petitioner as against them as well as the evidence adduced by the Petitioner in the present petition.
13. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the relative, eye witness and also pillion rider of the Motor Cycle bearing Registration No.KA-51-EC-3814, which was ridden by the Petitioner, had lodged Ex.P.2 Complaint before the Jigani Police, Bangalore, as against the rider of the Motor Cycle bearing Registration No.KA-02-Y-7304 by alleging that, on 06.02.2012 at 8.30 a.m., when the Petitioner was proceeding on the Motor Cycle bearing Registration No.KA-51-EC- 3814 from Anekal Haragadde Village, at that time, the offending Motor Cycle bearing Registration No.KA-02-Y-7304 came from Jigani towards Anekal with very high speed, rash and negligent manner by its rider and dashed to their Motor Cycle and due to the impact, they fell down and their Motor Cycle was badly damaged and the Petitioner had sustained grievous injuries and he sustained simple injuries and through Ambulance, the Petitioner was shifted to Vijayashree Multi Speciality Hospital, Jigani, wherein, first-aid treatment was given and thereafter, he was shifted to Sanjay Gandhi Institute of Trauma and Orthopedics and hence, he prayed to take necessary legal action as against the rider of the Motor Cycle bearing Registration No.KA-02-Y-7304 and based on the said complaint, the jurisdictional Jigani Police, Bangalore District have registered a criminal case as against the rider of the Motor Cycle bearing Registration No.KA-02-Y-7304 for the offences punishable under Section 279, 337 and 338 of IPC in 14 M.V.C.NO.2619/2015 (SCCH-7) their Crime No.14/2015. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Complaint by the eye witness in respect of the said road traffic accident, which caused to the Petitioner.
14. The contents of Ex.P.3 Statement of the Petitioner and Ex.P.4 Statement of Sri.Munikrishna S/o. Late Yellappa, i.e., the complainant, who is an eye witness of the said road traffic accident, clearly disclosed that, at the time of accident, the complainant was proceeding as a pillion rider in a Motor Cycle bearing Registration No. KA-51-EC-3814, which was ridden by the Petitioner on 06.02.2015 at 8.30 a.m., near Bus Stand, Anekal Taluk, Main Road, Haragadde Village, i.e., in front of Devasar Granites, at that time, the Motor Cycle bearing Registration No.KA-02-Y-7304 came with very high speed, rash and negligent manner by its rider and dashed to their Motor Cycle and due to the said impact, both of them were fell down on the road along with the Motor Cycle and the Petitioner had sustained grievous injuries on his both legs and the pillion rider, who is the complainant had sustained simple injuries and the Petitioner had taken first-aid treatment at Vijayashree Multi Specialty Hospital, and thereafter, he was shifted to Sanjay Gandhi Hospital.
15. The contents of Ex.P.5 Spot Panchanama and Ex.P.6 MVI Report further clearly disclosed that, the offending Motor Cycle bearing Registration No.KA-02-Y-7304 as well as its rider are very much involved in the said road traffic accident and the said road traffic accident was taken place due to his negligence 15 M.V.C.NO.2619/2015 (SCCH-7) itself and if the rider of the Motor Cycle could have taken a little care while riding the Motor Cycle at the time of accident, he could have avoided the said road traffic accident. The damages caused to both the Motor Cycles are clearly shown in Ex.P.6 MVI Report, which disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.6 MVI Report that, the said road traffic accident was not occurred due to any mechanical defects of the said Motor Cycles.
16. The contents of Ex.P.8 Wound Certificate disclosed that, with a history of road traffic accident, the two wheeler, Petitioner riding was hit by another two wheeler at around 9.30 a.m., on 06.02.2015 in Haragadde on Jigani Main Road and the Petitioner was admitted in Sanjay Gandhi Institute of Trauma and Orthopedics and on examination, it is found that, he had sustained injuries, i.e., swelling and tenderness, deformity right thigh, swelling and deformity over left thigh with an open wound on lower 1/3rd exposing bone, swelling over left ankle of mouth and X-ray shows fracture of right femur and supracondylar fracture left femur, which are grievous in nature.
17. The contents of Ex.P.9 Discharge Summary clearly disclosed that, with a history of road traffic accident, he was admitted in Sanjay Gandhi Institute of Trauma and Orthopedics to take treatment to the accidental injuries and on examination, it is found that, the Petitioner had sustained 3 grievous injuries and by admitting as an inpatient from 06.02.2015 to 23.03.2015, i.e., for 46 days, he took treatment to the said accidental injuries.
16 M.V.C.NO.2619/2015(SCCH-7)
18. The contents of Ex.P.10 Discharge Summary relating to Sanjay Gandhi Hospital further clearly disclosed that, again the Petitioner was admitted in the said Hospital on 05.05.2015 and he took treatment to the said accidental injuries by admitting as an inpatient till 18.05.2015, totally for 14 days and the principal summary of the case is history of road traffic accident and the Petitioner sustained fracture supracondylar femur left and was operated with ORIF with LCP on 13.03.2015 for the same and the Petitioner came with signs of delayed union and during the course of treatment bone grafting was done.
19. The contents of Ex.P.12 C.T. Scan Report, Ex.P.13 Lab Reports 5 in numbers, Ex.P.14 Radiological Report 6 in numbers, Ex.P.20 Photographs 5 in numbers, Ex.P.21 C.D relating to Ex.P.20 Photographs, which are produced by the Petitioner and Ex.P.22 Case Sheet and Ex.P.23 X-ray Films 5 in numbers, which are produced by the P.W.2, who is a treated Doctor, are clearly disclosed the nature of injuries and line of treatment and length of treatment taken by the Petitioner for the said accidental injuries. The P.W.2, who is a treated Doctor, has also clearly stated in his examination-in-chief that, on 06.02.2015, he examined the Petitioner, who came to their Hospital with a history of road traffic accident and on examination, he found the injuries, i.e., fracture shaft right femur, supracondylar fracture left femur and by admitting as an inpatient, he took treatment to the said accidental injuries and discharged from the Hospital on 23.03.2015.
17 M.V.C.NO.2619/2015(SCCH-7)
20. From the above said medical evidence, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and by admitting as an inpatient from 06.02.2015 to 23.03.2015, totally for 46 days and from 05.05.2015 to 18.05.2015, i.e. for 14 days, totally for 60 days, he took treatment to the said accidental injuries at Sanjay Gandhi Institute of Trauma and Orthopedics.
21. The contents of Ex.P.7 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to very high speed, rash and negligent manner of riding of the Motor Cycle bearing Registration No.KA-02-Y-7304 by its rider itself, the said road traffic accident was taken place on 06.02.2015 at 8.30 a.m., in front of Devasara Granites Company, near Haragadde Village, Anekal Bannerghatta Main Road, which dashed to the Motor Cycle bearing Registration No.KA-51-EC- 3814, wherein, the Petitioner and the complaint were proceeding as a rider and pillion rider respectively and due to the said impact, both of them fell down along with the Motor Cycle and the complainant, i.e., the pillion rider had not sustained any injuries and the Petitioner has sustained grievous injuries and after thorough investigation, the Investigating Officer has filed a charge sheet as against the rider of the said offending Motor Cycle for the offences punishable under Section 279 and 338 of IPC. There is no allegation leveled by the Investigating Officer as against the Petitioner in Ex.P.7 Charge Sheet about his negligence in the commission of the said road traffic accident.
18 M.V.C.NO.2619/2015(SCCH-7)
22. From the above said material evidence, both oral and documentary, it is clearly proved that, due to very high speed, rash and negligent manner riding of the offending Motor Cycle bearing Registration No.KA-02-Y-7304 by its rider itself, the said road traffic accident was taken place, which dashed to the Motor Cycle bearing Registration No.KA-51-EC-3814, wherein, the Petitioner was proceeding as a rider and in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and the said offending Motor Cycle bearing Registration No.KA-02-Y-7304 as well as its rider are very much involved in the said road traffic accident. Accordingly, I answered Issue No.1 in the Affirmative.
23. ISSUE NO.2 :- The Petitioner has produced Ex.P.15 Driving Licence relating to him, which disclosed that, his date of birth is on 08.06.1996. The Date of accident is on 06.02.2015. From the said dates, it appears that, at the time of accident, the Petitioner was 49 years old. Hence, the age of the Petitioner is considered as 49 years at the time of accident.
24. The P.W.1 has stated that, he was working as a Welder and earning Rupees 12,000/- per month. He has further stated in his cross-examination that, he has studied up to SSLC. He has further clearly stated in his cross-examination that, at the time of accident, he was doing welding work. The Petitioner has produced Ex.P.16 Notarised Xerox copy of General Licence dated 15.10.2012 and Ex.P.17 Notarised Xerox Copy of Lease Deed dated 13.12.2012. Admittedly, the Petitioner has not produced any 19 M.V.C.NO.2619/2015 (SCCH-7) authenticated documents to show that, at the time of accident, he was earning Rupees 12,000/- per month. But, based on the said grounds only, it cannot be thrown away the said evidence of P.W.1 in respect of his avocation and income, as, by producing Ex.P.16 and Ex.P.17, the Petitioner has clearly proved that, at the time of accident, he was working as a Welder. Further, at the time of accident, the Petitioner was 49 years old and the above said Police documents clearly disclosed that, at the time of accident, he was proceeding on the Motor Cycle to his welding shop. Further, by considering the said age of the Petitioner, i.e., 49 years, which clearly disclosed his family status with wife and children. Furthermore, the P.W.1 in his cross-examination has clearly stated that, he studied up to SSLC. Hence, the said income of Rupees 12,000/- per month at the time of accident, by the Petitioner is not an exorbitant and unreasonable. Hence, the notional income of the Petitioner is considered as Rupees 12,000/- per month at the time of accident.
25. The P.W.1 has stated that, during the course of treatment, he underwent several investigations and CRIF with IMIL nail ORIF with LCP implants fixed surgery to fractured parts and several bottles of blood transfusion done and treated the other injuries. He has further stated that, at the time of discharge, he was advised bed rest, strict non-weight bearing, to use crutch walker and follow-up treatment. He has further stated that, after discharge, he is taking follow-up treatment as per the advise of the Doctor. He has further stated that, again he was admitted to same Hospital and taken treatment from 05.05.2015 to 18.05.2015 as 20 M.V.C.NO.2619/2015 (SCCH-7) an inpatient and underwent several investigation and he underwent bone grafting surgery and treated the injuries and after discharge, he was advised bed rest, strict NWB and to use crutch walker and follow-up treatment and after discharge, till today, he is taking follow-up treatment as per the advise of the Doctor. The P.W.1 has further clearly stated in his cross-examination that, last month, he has visited the Hospital for follow-up treatment.
26. The P.W.2, who is a treated Doctor, has stated in his examination-in-chief that, X-rays of the parts were taken and POP slabs were applied and the Petitioner was prepared for surgery and then, on 13.02.2015 under epidural spinal anesthesia, fracture shaft of right femur was operated and fixed with interlocking nail and then on 13.03.2015 under spinal anesthesia the supracondylar fracture left femur was operated and fixed with locking compression plate LCP and the Petitioner was discharged from the Hospital on 23.03.2015 and since then, he was on follow-up.
27. Based on the contents of Ex.P.8 Wound Certificate, Ex.P.9 and Ex.P.10 Discharge Summaries, Ex.P.12 C.T. Scan Report, Ex.P.13 Lab Reports, Ex.P.14 Radiological Reports 6 in numbers, Ex.P.20 Photographs, Ex.P.21 C.D relating to Ex.P.20 Photographs, Ex.P.22 Case Sheet and Ex.P.23 X-ray Films, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained injuries, i.e., swelling and tenderness, deformity right thigh, swelling and deformity over left thigh with an open wound on 21 M.V.C.NO.2619/2015 (SCCH-7) lower 1/3rd exposing bone, swelling over left ankle of mouth and X-ray shows fracture of right femur and supracondylar fracture left femur, i.e., 3 grievous injuries and by admitting as inpatient from 06.02.2015 to 23003.20145, i.e., for 46 days and again by admitting as inpatient from 05.05.2015 to 18.05.2015, i.e., for 14 days, totally for 60 days, the Petitioner took treatment to the said accidental injuries in Sanjay Gandhi Institute of Trauma and Orthopedics. It is clearly mentioned in Ex.P.9 Discharge Summary that, during the course of treatment, the Petitioner underwent surgery and implants were inserted and at the time of discharge, he was advised to take follow-up treatment. It is clearly mentioned in Ex.P.9 Discharge Summary that, ORIF IMIL nailing and ORIF LCP done on 13.03.2015 and advise on discharge strict non- weight bearing and to use walker for 6 weeks and advised on discharge and medication. It is also clearly mentioned that, review on Tuesday OPD for suture removal and dressing once in every 3 days. It is also mentioned in Ex.P.10 Discharge Summary that, fracture supracondylar left femur with LCP in situ, bone grafting from iliac crest done on 08.05.2015 and adviced at the time of discharge strict not weight bearing with walker for 4 weeks with medications. The Petitioner has also produced Ex.P.11 OPD Record. From this medical evidence, it is clearly proved the nature of injuries, line of treatment given to the Petitioner to the said accidental injuries, length of treatment and advised by the treated Doctor after discharge for follow-up treatment. Therefore, the evidence of P.W.1 in respect of taking follow-up treatment even after discharge from the Hospital can very well be believed and accept.
22 M.V.C.NO.2619/2015(SCCH-7)
28. The P.W.1 has stated that, due to the accidental injuries, he is unable to attend his work and therefore, he sustained loss of income from the date of accident till today. He has further stated that, prior to accident, he was hale and healthy and now, he is unable to walk, run, stand and sit, unable to lift weight and he is limping, now, he is getting pain at the fractured sites and other injured parts of the body. He has further stated that, he always depends on others for regular and day to day activities and he engaged an attendant during his treatment period and till today also and till today, he is using crutch walker. He has further stated that, he suffered permanent disability and he is the only earning member in the family and hence, he is unable to maintain his family. He has further stated that, he sustained loss of happiness physically and mentally, loss of amenities, loss of future earning capacity and future prosperous, decreasing in life span and also sustained pain and agony.
29. The P.W.2 has stated that, he lastly examined the Petitioner clinically and radiologically on 29.03.2016 and assessed the disability on the Guidelines of Ministry of Social Justice and Empowerment issued by the Government of India. By considering the mobility component relating to active range of movement and muscle power of hip, knee and ankle, loss of mobility component by applying telescopic formula, stability component and additional points, the P.W.2 has opined that, the total permanent physical disability to the whole body from both lower limb is 29%. He has further stated that, latest X-ray shows united on the right femur, whereas, left supracondylar fracture shows signs of non-union. As 23 M.V.C.NO.2619/2015 (SCCH-7) this Tribunal has already observed about the production of Ex.22 Case Sheet and Ex.P.23 X-ray Films 5 in numbers, by the P.W.2.
30. But, based on the above said oral version of P.W.1 and P.W.2 as well as the contents of the above said medical documents, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from permanent physical whole body disability of 29%, as, at the time of accident, the Petitioner was 49 years old and he is still having implants in situ to the fracture site and neither the Petitioner nor the P.W.2 produced the disability certificate. Further, the Petitioner has not produced any authenticated documents issued by the competent Doctor to show that, due to the said accidental injuries, now, he is unable to do his welding work. Further, the fracture of right femur is united and the same has been clearly stated by the P.W.2 in his evidence. Only the left femur supracondylar fracture is not united as he is still having implants in situ. Further, the P.W.2 has advised for removal of implants. Further, the P.W.2 has not specifically assessed the permanent physical and functional disability of the Petitioner, which is suffering by him due to the said accidental injuries. Further, the P.W.2 in his cross- examination has clearly stated that, the muscle power is normal and the rotation of left hip is normal and if the implants are removed, the said extent of disability as stated by him will definitely be reduced. Hence, the said extent of permanent physical disability of 29% to the whole body, as stated by the P.W.2, which is suffering by the Petitioner due to the accidental injuries, is not believed and accepts.
24 M.V.C.NO.2619/2015(SCCH-7)
31. However, in the said road traffic accident, the Petitioner has sustained 3 grievous injuries, i.e., swelling and tenderness, deformity right thigh, swelling and deformity over left thigh with an open wound on lower 1/3rd exposing bone, swelling over left ankle of mouth and X-ray shows fracture of right femur and supracondylar fracture left femur and by admitting as an inpatient totally for 66 days, he took treatment to the said accidental injuries and still the Petitioner is having implants in situ to the fracture site and he was 49 years old at the time of accident and he has proved his avocation and income at the time of accident. By considering all these material facts and evidence,, which is already discussed in detail, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 25% to the whole body, which is believable and acceptable one. Hence, the Petitioner is entitled for compensation under the following heads.
32. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 25%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 25%.
33. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 49 years at the time of accident.
25 M.V.C.NO.2619/2015(SCCH-7) The multiplier corresponding to the said age as per Sarala Varma's case is 13.
34. As the Petitioner is suffering from permanent physical and functional disability of 25% to the whole body. The notional income of the Petitioner is already considered as Rupees 12,000/- per month. Therefore, the loss arising out of the said 25% disability for monthly income of Rupees 12,000/- by applying multiplier 13 would comes to Rupees 4,68,000/-, i.e., (Rs.12,000/- x 12 x 13 x 25%).
35. As per Ex.P.8 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained 3 grievous injuries. The Petitioner was in the Hospital as an inpatient from 06.02.2015 to 23.03.2015, i.e., for 46 days and from 05.05.2015 to 18.05.2015, i.e., for 14 days, totally for 60 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 75,000/- towards pain and suffering.
36. As it is already observed that, the age of the Petitioner was 49 years. He has to lead remaining his entire life with 25% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
26 M.V.C.NO.2619/2015(SCCH-7)
37. The Petitioner had sustained 3 grievous injuries and he was in the Hospital as an inpatient for 60 days and he could not do any work at least for 5 months and thereby, he deprived the income. Therefore, at the rate of Rupees 12,000/- per month, a sum of Rupees 60,000/- is awarded towards loss of income during the laid up period.
38. The P.W.1 has stated that, he has spent Rupees 1,20,000/- for medical expenses and some bills are lost and he has spent Rupees 30,000/- towards food and nourishment and incurred Rupees 30,000/- for conveyance expenses and also spent Rupees 2,000/- per follow-up treatment for several times and also spent for attendant charges of Rupees 6,000/- p.m. In this regard, the Petitioner has only produced Ex.P.18 Medical Bills 40 in numbers, which is amounting of Rupees 1,02,933/- and Ex.P.19 Medical Prescriptions 11 in numbers. No doubt, the P.W.2 in his cross-examination has stated that, in final billing sheet available in Ex.P.22 Case Sheet, a sum of Rupees 14,895/- is paid by the Chief Minister Relief Fund. The P.W.1 has also clearly admitted in his cross-examination that, he has received funds from Chief Minster Fund in respect of his medical expenses. But, the said amount of Rupees 14,895/- is not claimed by the Petitioner in the present petition, which is clear in Serial No.33 of Ex.P.18 Medical Bills, which is shown as Rupees 30,000/-, out of the total amount of Rupees 44,895/-. Therefore, the said amount of Rupees 14,895/- cannot be deducted in Ex.P.18 Medical Bills. The Petitioner has taken treatment at Sanjay Gandhi Hospital, wherein, he was taken treatment as an inpatient from 06.02.2015 27 M.V.C.NO.2619/2015 (SCCH-7) to 23.03.2015, i.e., for 46 days and from 05.05.2015 to 18.05.2015, i.e., for 14 days, totally for 60 days. Considering the nature of the injuries and line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 1,02,933/- to the Petitioner.
39. The P.W.1 has stated that, the doctor advised to undergo one more surgery and its costs about Rupees 30,000/- The P.W.2 has stated that, latest X-ray shows united on the (R) femur and whereas (L) supracondylar fracture shows signs of non- union for which he has to undergo one more surgery with refixation of the fracture with LCP + bone grafting, for which, he has to spend Rupees 25 - 30 thousand in their Hospital. It is clearly mentioned in Ex.P.10 Discharge Summary about supracondylar femur (L) and was operated with ORIF with LCP on 13.03.2015, which disclosed about the insertion of implants in situ. The said implants have to be removed and therefore, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.2 produced the estimation for removal of implants. However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 20,000/- to the Petitioner.
40. As the Petitioner was taken treatment as an inpatient for 60 days, it is necessary to award a sum of Rupees 10,000/- towards conveyance charges, Rupees 10,000/- towards attendant 28 M.V.C.NO.2619/2015 (SCCH-7) charges and Rupees 15,000/- towards food, nourishment and diet charges etc.,
41. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. Rs. 4,68,000-00 arising out of 5% Disability
2. Pain and sufferings Rs. 75,000-00
3. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
4. Rs. 60,000-00 up period
5. Actual medical expenses Rs. 1,02,933-00
6. Future medical expenses Rs. 20,000-00
7. Conveyance Rs. 10,000-00
8. Attendant Charges Rs. 10,000-00 Food, Nourishment &
9. Rs. 10,000-00 Diet charges TOTAL Rs. 7,80,933-00
42. In all, the Petitioner is entitled for total compensation of Rupees 7,80,933/- along with interest at the rate of 8% per annum on the above said sum (excluding future medical expenses of Rupees 20,000/-) from the date of petition till payment.
43. The P.W.1 has stated that, the Respondent No.2 is the owner and the same has been insured with the Respondent No.1 and the Insurance Policy was in force as on the date of accident and therefore, both the Respondents are jointly and severally liable to pay the compensation as claimed by him in the claim petition.
29 M.V.C.NO.2619/2015(SCCH-7)
44. While answering Issue No.1, this Tribunal has already come to the conclusion that, due to very high speed, rash and negligent manner riding of the offending Motor Cycle bearing Registration No.KA-02-Y-7304 by its rider itself, the said road traffic accident was taken place, which dashed to the Motor Cycle bearing Registration No.KA-51-EC-3814, wherein, the Petitioner was proceeding as a rider and in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and the said offending Motor Cycle bearing Registration No.KA-02-Y-7304 as well as its rider are very much involved in the said road traffic accident.
45. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.1 is the insurer and the Respondent No.2 is a R.C. Owner and the Respondent No.3 is a present Owner of the offending Motor Cycle bearing Registration No.KA-02-Y-7304 and its Insurance Policy No.2320200922884200000. The Respondent No.1, who is the Insurance Company, has clearly admitted in its written statement that, the policy was issued as against the said Motor Cycle bearing Registration No.KA-02-Y-7304. From this, it is made crystal clear that, at the time of accident, the Respondent No.1 was an insurer and the Respondent No.2 is an earlier R.C. Owner and the Respondent No.3 is a present Owner of the offending Motor Cycle bearing Registration No.KA-02-Y-7304 and its Insurance Policy was valid, which covers the date of accident. There is no allegation leveled by the Investigation Officer in Ex.P.7 Charge Sheet as against the rider of the offending Motor Cycle that, at the time of accident, he was not having a valid and effective driving licence to 30 M.V.C.NO.2619/2015 (SCCH-7) ride such class of offending Motor Cycle. The violation of the terms and conditions either by the Respondent No.2 or by the Respondent No.3 is not proved by the Respondent No.1. Under such circumstances, the Respondent No.1 being an insurer and the Respondent No.2 being an R.C. Owner and the Respondent No.3 being present Owner are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since, the Respondent No.1 is an insurer, it shall indemnify the Respondents No.2 and 3. Hence, Issue No.2 is answered accordingly.
46. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 7,80,933/-
with interest at the rate of 8% p.a. (excluding future medical expenses of Rupees 20,000/-) from the date of the petition till the date of payment, from the Respondent No.1.
31 M.V.C.NO.2619/2015(SCCH-7) The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, 75% shall be released in the name of the Petitioner through account payee cheque, on proper identification.
Remaining 25% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 16th day of July, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
32 M.V.C.NO.2619/2015(SCCH-7) ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Junjappa
P.W.2 : Dr. Prakashappa
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of injured Statement of
Sri.Junjappa S/o. Late Motappa
Ex.P.4 : True copy of Further Statement of Sri.
Munikirshna S/o. Late Yellappa
Ex.P.5 : True copy of Spot Panchanama
Ex.P.6 : True copy of MVI Report
Ex.P.7 : True copy of Charge Sheet
Ex.P.8 : True copy of Wound Certificate
Ex.P.9 : Case Summary and Discharge relating to
Sanjay Gandhi Hospital
Ex.P.10 : Discharge Summary relating to Sanjay Gandhi Hospital Ex.P.11 : Outpatient Record Ex.P.12 : CT Scan Report Ex.P.13 : Lab Reports (5 in nos.) Ex.P.14 : Radiological Reports (6 in nos.) Ex.P.15 : Notarised xerox copy of D.L. relating to M. Junjappa S/o. Motappa Ex.P.16 : Notarised xerox copy of General Licence dated 15.10.2012 Ex.P.17 : Notarised xerox copy of Lease Deed dated 13.12.2012 Ex.P.18 : Medical Bills (40 in nos.) Ex.P.19 : Medical Prescriptions (11 in nos.) Ex.P.20 : Photographs (5 in nos.) Ex.P.21 : CD relating to Ex.P20 Photographs Ex.P.22 : Case Sheet Ex.P.23 : X-ray films (5 in nos.) 33 M.V.C.NO.2619/2015 (SCCH-7)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.