Bangalore District Court
Sri Venkatesha vs Ramesh Babu M.K on 10 April, 2017
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 10th DAY OF APRIL 2017
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No. 4376/2016 C/w.M.V.C.No. 4377/2016, 4378/2016,
4379/2016 and 4380/2016
Petitioners: 1. Sri Venkatesha,
(in MVC 4376/16) S/o Ramaiah,
Aged about 29 years,
R/at No.Kodihalli Colony,
Kudur Hobli,
Magadi Taluk,
Ramanagara District.
(By Sri S.G.Krishna Murthy,
Advocate )
PETITIONERS : 1. Kumari Rakshitha,
(in MVC 4377/16) D/o Jayanna,
Aged about 13 years.
The petitioner is minor in age she is
Represented by his father as natural
Guardian.
Jayanna,
S/o Kenchaiah,
Bytha, Hurdigere Hobli,
Tumkur Taluk and District.
(By Sri S.G.Krishna Murthy,
Advocate )
SCCH 1 2 MVC No.4376-4380 /2016
PETITIONERS : 1. Master Chandan,
(in MVC 4378/16) S/o Nagaraja,
Aged about 7 years,
The petitioner is minor in age he
is represented by his father as
Natural guardian ,
Nagaraja,
S/o Hanumanthaiah,
Aged about 35 years,
R/at Tore Ramahahalli,
Kadur Hoblu, Adarangi Post,
Magadi Taluk,
Ramanagar dist.
(By Sri S.G.Krishna Murthy,
Advocate )
PETITIONERS : 1. Master Chidananda,
(in MVC 4379/16) S/o Nagaraja,
Aged about 8 years,
The petitioner is minor in age she
is represented by his father as
Natural guardian ,
Nagaraja,
S/o Hanumanthaiah,
Aged about 35 years,
R/at Tore Ramahahalli,
Kadur Hoblu, Adarangi Post,
Magadi Taluk,
Ramanagar dist.
(By Sri S.G.Krishna Murthy,
Advocate )
PETITIONERS : 1. Smt.Pushpalatha,
(in MVC 4380/16) W/o Nagaraju,
Aged about 30 years,
R/at Tore Ramanahalli,
Kudur Hoblu, Adarangi Post,
SCCH 1 3 MVC No.4376-4380 /2016
Magadi Taluk,
Ramanagara dist.
(By Sri S.G.Krishna Murthy,
Advocate )
- V/s -
Respondents: 1. Ramesh Babu M.K.,
(in all the cases) S/o Kemparaju,
4th main, 7th A cross,
Sadashivanagara,
Tumkur.
(By Sri S.N.Thyagaraj, Advocate)
Respondent No.2 2. The Manger,
( in all the cases) The Oriental Ins. Co. Ltd.,
Regional Office at
Leo Shopping Complex,
No.44/45,
Residency Road Cross,
Bangalore -560 025.
(Policy No.423201/31/2016/12385
Policy period from 19.02.2016 to
18.02.2017)
(By Sri D.M.Joshi., Advocate)
*******
COMMON JUDGMENT
These petitions are arising out of the same accident and
therefore, they are disposed off by this common judgment.
SCCH 1 4 MVC No.4376-4380 /2016
2. The petitioners and the guardian of the minor petitioners
have filed these petitions under Section 166 of the of the Motor
Vehicles Act, 1989 seeking compensation for the injuries sustained
by them in the road traffic accident.
3. Brief facts of the case are that:-
It is the case of the petitioners that on 22.05.2016 at about 2.00
a.m. the when petitioner in M.V.C.No.4376/2016 was driving
autorickshaw along with his relatives to go to trip to the Dabasapete to
Kudur and when he reached Shivagange, Dabaspete road, near
Kuthagatta cross, Sompura Hobli, Bangalore at that time the driver of
the car bearing No.KA-32-NO-183 came from opposite direction in a
rash and negligent manner and dashed against the autorickshaw. Due
to the impact the petitioner and his family members sustained
grievous injuries.
4.Immediately after the accident, petitioner in
M.V.C.No.4376/16 was shifted to Government hospital , Dabaspete,
wherein he took first aid treatment and then shifted to Sapthagiri
hospital, Bangalore and took treatment as inpatient and during the
course of treatment he underwent surgery and he has spent
SCCH 1 5 MVC No.4376-4380 /2016
Rs.2,00,000/- towards conveyance, food and nourishment charges.
Prior to the accident the petitioner was doing agriculture and also
vending vegetables and earning Rs.20,000/p.m. and due to the
accident he has lost his income.
5. Immediately after the accident, petitioner in
M.V.C.No.4377/16 was shifted to Government hospital , Dabaspete,
wherein first aid treatment was given to her and then shifted to
Sapthagiri hospital, Bangalore and took treatment as inpatient and
during the course of treatment she underwent surgery and inserted rod
to the right leg and he has spent Rs.1,00,000/- towards conveyance,
food and nourishment charges.
6. Immediately after the accident, petitioner in
M.V.C.No.4378/16 was shifted to Government hospital , Dabaspete,
wherein first aid treatment was given to him and then shifted to
Sapthagiri hospital, Bangalore and took treatment as inpatient and
during the course of treatment by spending Rs.1,00,000/- towards
conveyance, food and nourishment charges.
7. Immediately after the accident, petitioner in
M.V.C.No.4379/16 was shifted to Government hospital , Dabaspete,
wherein he took first aid treatment and then shifted to Sapthagiri
SCCH 1 6 MVC No.4376-4380 /2016
hospital, Bangalore, wherein he took treatment as inpatient for a
period of 19 days and has spent Rs.1,00,000/- towards conveyance,
food and nourishment charges.
8. It is contended by the petitioners that before the accident the
deceased was hale and healthy and he was working as a mason and
earning Rs.12,000/p.m. and the deceased was only earning member in
their family and on account of the death of deceased, first petitioner
has lost her husband , second petitioner has lost her father and
petitioner NO.3 and 4 have lost their son and accident was due to the
rash and negligent driving of the driver of the car bearing No. KA-53-
4875 and the same was insured with the second respondent and
hence, the respondents jointly and severally liable to pay the
compensation .
9. Immediately after the accident, petitioner in
M.V.C.No.4380/16 was shifted to Government hospital , Dabaspete,
wherein he took first aid treatment and then shifted to Sapthagiri
hospital, Bangalore and took treatment as inpatient and during the
course of treatment she underwent surgery and she has spent
SCCH 1 7 MVC No.4376-4380 /2016
Rs.50,000/- towards conveyance, food and nourishment charges. Prior
to the accident the petitioner was doing agriculture and also vending
vegetables and earning Rs.20,000/p.m. and due to the accident she has
lost her income.
10. This accident was occurred due to the rash and negligent
driving of the driver of the car and first respondent being the
R.C.Owner and second respondent being the insurer jointly and
severally liable to pay the compensation.
11. In pursuance of these claim petitions, this Court has
issued notices against the respondents. Respondents No.1 and 2 have
appeared before the Court through their respective counsels and
respondent No.1 has filed written statement. The written statement
filed by the respondent NO.2 is not taken on record since the cost
imposed for filing the written statement belatedly is not paid.
12. The first respondent has filed written statement denying the
petition averments. The date, time and mode of accident, age ,
avocation and income of the petitioners, injuries sustained by them,
expenses incurred by them are all denied. The compensation claimed
by the petitioners in all the cases is excessive and exorbitant. It is
SCCH 1 8 MVC No.4376-4380 /2016
further contended that the petitioner is not a professional driver as per
his admitted fact in the claim petition, he is working as a agriculturist
and vegetable vendor and he has not clarified whether he was having
valid driving licence to drive the autorickshaw. It is further contended
that if at all the car dashed against the petitioner's auto the said auto
would have completely damaged. He says the car was insured with the
second respondent and the policy was valid as on the date of accident,
hence, respondent No.2 is liable to indemnify this respondent.
13. Based on the pleadings this Court has framed the following
common issues in both the cases:-
ISSUES in all the cases
1. Whether the Petitioner proves that he sustained grievous
injuries in a Motor Vehicle Accident that occurred on
22.05.2016 at about 2.00 a.m, at Shivagange, Dosapete
Road, Near Kuthagatta Cross, Sompura Hobli,
Bangalore, within the jurisdiction of Dabaspet Police
Station on account of rash and negligent driving of the
Tavera Car bearing registration No.KA-32-No183 by its
driver?
2. Whether the Petitioner is entitled for compensation? If
so, how much and from whom?
3) What order?
14. In order to prove their cases, petitioner in M.V.C.
No.4376/16 is examined as PW1, the guardian of the minor petitioner
SCCH 1 9 MVC No.4376-4380 /2016
in M.V.C. No.4377/2016 is examined as PW-2, the guardian of the
minor petitioners in M.V.C.No.4378 & 4379/16 is examined as PW-3,
Petitioner in M.V.C.No.4380/16 is examined as PW-4 and one
witness is examined as PW-5 and have got marked the documents at
Ex.P.1 to 41 . The written statement filed by the respondent NO.2 is
not taken on record since the cost imposed for filing the written
statement belatedly is not paid, hence, he has not led his evidence.
15. I heard the arguments of petitioner counsel.
16. Having heard the arguments, based on the pleadings and the
evidence available on record, I record my findings on the above issues
as under:-
1) Issue No.1( in all the cases )... In the Affirmative,
2) Issue No.2( in all the cases )... Partly in the Affirmative,
3) Issue No.3( in all the cases )... As per final order
for the following:-
REASONS
17. Issue No.1 ( in all the cases): The petitioners in all the
cases have contended that on 22.05.2016 at about 2.00 a.m. the when
petitioner in M.V.C.No.4376/2016 was driving autorickshaw along
with his relatives to go to trip to the Dabasapete to Kudur and when he
reached Shivagange, Dabaspete road, near Kuthagatta cross, Sompura
SCCH 1 10 MVC No.4376-4380 /2016
Hobli, Bangalore at that time the driver of the car bearing No.KA-32-
NO-183 came from opposite direction in a rash and negligent manner
and dashed against the autorickshaw. Due to the impact the petitioner
and his family members sustained grievous injuries.
18. The petitioners in all the cases have examined the
petitioner in M.V.C.No.4376/2016 as PW-1 and he has reiterated the
averments of the petition in his affidavit evidence. PW1 has got
marked the documents F.I.R., mahazar , IMV report, charge sheet as
per Ex.P.1 to 3 and 5 . The respondent No.2 has not paid the cost,
hence, for non-payment of cost written statement is not taken on
record. Hence, cross- examination of PW-1 to 4 is taken as nil.
19. Now, let me appreciate the oral and documentary evidence
available before the Court. FIR discloses that the accident was taken
place on 22.5.2016 at about 14.05 hours and the complaint was given
by one eye witness and he states that on 22.5.2016 at about 2.05 p.m.
when he was coming from Dabaspet side to go to Shivagange and he
was riding motor cycle near Khothaghatta cross, at that time the
driver of a Tavera car bearing No. KA-32-NO-183 came in a rash and
negligent manner and dashed against the autorickshaw which was
going towards Shivagange side, as a result accident occurred. The
SCCH 1 11 MVC No.4376-4380 /2016
spot mahazar also discloses that the accident road is tar road and it is
north -south road and there is a slight curve when the vehicle comes
from Shivagange to Dabaspet and driver of the car came in a rash and
negligent manner and dashed against the autorickshaw which was
going from Dabaspet to Shivagange. IMV report which is marked at
Ex.P.3 discloses that autorickshaw sustained the following damages:
1. Front bumper right side corner damaged
2. Bonnet right side damaged
3. Right side front fender damaged
4. Right side front door damaged
5. Right side rear view mirror damaged
In the same was car bearing No. KA-32-NO-183 has sustained
the following damages:
1. Front wind screen glass broken and frame damaged
2. front right side indicator damaged
3. right side partition damaged
4. right side rear portion body damaged
5. flat form right side portion damaged
6. Handle bar damaged
After investigation Police have filed charge sheet against the
driver of the car bearing No. KA-32-NO-183, for the offences
punishable under section 279, 337 and 338 of I.P.C. and the same is
marked at Ex.P.5. Though the respondent No.1 has appeared before
the Court and filed written statement he has not cross-examined the
SCCH 1 12 MVC No.4376-4380 /2016
petitioners and the counsel for the respondent No.2, insurance
company has appeared before the Court and the written statement
filed by him was not taken on record since the cost imposed for filing
the written statement belatedly is not paid, hence, question of cross-
examining the witness does not arise. The evidence of the petitioners
remain unchallenged. In the absence of contra evidence this Court has
to accept the evidence of PW-1 to 5. In order to consider the
contributory negligence there must be cogent evidence as held in the
judgment reported in (2014 Kant.M.A.C. 330 (SC) ( Meera Devi and
another )-No cogent evidence to prove plea of contributory
negligence, doctrine of common law cannot be applied -
compensation awarded by this Tribunal just and proper. Hence, I
answer issue No.1 in the affirmative.
20. Issue No.2 ( in M.V.C. No.4376/2016) : It is the case of the
petitioner that on account of the accident he has sustained grievous
injuries. The petitioner in order to prove his case, he has produced
wound certificate at Ex.P.4, which discloses petitioner has sustained
cut lacerated wound over left forehead, right shoulder anterior
dislocation, abrasion , swelling tenderness over right knee joint, x-ray
SCCH 1 13 MVC No.4376-4380 /2016
shows lateral condyle fracture of right tibia and the doctor has opined
that the above mentioned injuries are grievous in nature. Ex.P.5
discharge summary discloses that the petitioner has sustained anterior
shoulder dislocation right lateral condyle fracture, he had undergone
closed reduction and he took treatment in the hospital from 22.5.2016
to 27.6.2016 i.e., for a period of 37 days. For having taken note of the
nature of the injuries sustained by the petitioner, nature and duration
of treatment taken by him, I award a sum of Rs.40,000/- towards
Pain and sufferings.
21. It is the case of the petitioner that he has suffered permanent
disability due the accidental injuries. In order to prove the disability
sustained by the petitioner he has examined the doctor as PW-5 and
in his affidavit he reiterated the nature of the injuries suffered and the
treatment given to the petitioner in the hospital. PW-5 in his evidence
he says the petitioner has sustained anterior dislocation of right
shoulder, depressed lateral condyle fracture of right tibia, cut lacerated
wound on forehead. The petitioner was treated with closed reduction
of right shoulder dislocation under GA on 22.05.2016 and operated
with ORIF with L buttress plate and screws + bone graft was done on
27.5.2016. He further states that on recent follow up, he has pain,
SCCH 1 14 MVC No.4376-4380 /2016
deformity and limitation of movements at the right knee. PW-5 further
says he has instability and tendency of recurrent dislocation of right
shoulder. Radiologically there is mal union of the right tibial condyle
fracture. By taking into consideration the right upper limb component,
muscle strength component, co-ordinated activities he has assessed
the disability suffered by the petitioner to right upper limb is 20% and
the total disability to whole body with respect to right upper limb is
6.66% and the disability to right lower limb is at 58.74%, and the total
physical disability for whole body with respect to left lower limb is
19.58% and the disability to whole body is at 26.24%.. No doubt
doctor who was examined as PW-5 was not subjected to cross-
examination since the respondent insurance company Advocate has
not paid the cost when the belated written statement was allowed on
payment of cost, inspite of several opportunity was given, he has not
paid the cost and has not taken any steps to cross-examine the witness
by paying the cost. Even when the matter was daily reserved for
judgment, he has not come up with an application seeking permission
to cross-examine the witness on payment of cost. For having taken
note of the nature of the injuries i.e., lateral condyle fracture of right
tibia, the disability assessed by the doctor is little on higher side.
SCCH 1 15 MVC No.4376-4380 /2016
Though the doctor has taken 1/3rd to whole body, the very assessment
of limb disability itself is on higher side and this Court can take note
that he was treated conservatively for the dislocation and surgery was
conducted and there is a malunion of the right tibia condyle fracture,
hence, I am of the opinion that the disability suffered by the petitioner
can be assessed at 12% to whole body.
22. The petitioner has deposed before the Court that he was
earning Rs.20,000/p.m. by doing agriculture and by selling vegetable.
In order to substantiate his contention he has produced Ex.P.11 R.T.C.
extract and it does not disclose the name of Venkatesh but his father's
name Ramaiah is mentioned. He has also produced Milk Producers
Co-operative society Pass book and the same stands in the name of
petitioner. For having taken note of the fact that petitioner was doing
agriculture and was also doing milk vending business, this Court can
take income of the petitioner at Rs.8000/p.m.
23. The petitioner has produced driving licence which is
marked at Ex.P.10 and his date of birth is mentioned as 02.04.1984
and this accident was taken place on 22.05.2016, as on the date of
accident petitioner is aged about 32 years and the appropriate
multiplier applicable is 16. Hence, the petitioner is entitled for
SCCH 1 16 MVC No.4376-4380 /2016
compensation under the head of future loss of earning due to disability
as : Rs.8000x12x16x12/100 = Rs.1,84,320/- . Hence, I award
Rs.1,84,320/- towards loss of earning due to disability.
24. Regarding loss of income is concerned, the petitioner had
suffered lateral condyle fracture of right tibia and he was treated
conservatively. For having taken note of the injury sustained by him
and might not have been able to earn for a period of three months.
Hence, I award Rs.24,000/- towards loss of income during the
treatment period .
25. The petitioner has produced medical bills to the tune of
Rs.36,445/- as per Ex.P.7. It includes inpatient bill amounting to
Rs.15,230/- and other bills are pertaining to the medicine purchased
by him. No dispute with regard to these bills and the same is rounded
off to Rs.36,500/-.Hence, I award Rs.36,500/- towards medical
expenses.
26. The petitioner took treatment in the hospital as inpatient
from 22.05.2016 to 27.06.2016 i.e., for a period of 36 days. He might
have spent some amount towards conveyance, food and nourishment
etc., Hence, I award Rs.25,000/- as compensation under the head of
SCCH 1 17 MVC No.4376-4380 /2016
food and nourishment, conveyance, attendant charges and other
incidental charges.
27. The petitioner is aged about 32 years and he has to lead rest
of his life with this disability of 12%. For having taken note of the
said fact into consideration, I award Rs.25,000/- under the head of
loss of amenities.
28. The details of compensation, I propose to award are as
under:
Sl. Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 40,000-00
2. Medical expenses Rs. 36,500-00
3. Loss of income during the period of Rs. 24,000-00
inpatient and period of treatment.
4. Food and nourishment, conveyance , Rs. 25,000-00
attendant charges, ambulance
charges and other incidental
expenses.
5. Future loss of earning due to Rs. 1,84,320-00
permanent disability
6. Loss of amenities Rs. 25,000-00
Total Rs. 3,34,820-00
SCCH 1 18 MVC No.4376-4380 /2016
29. ISSUE No.2: (in M.V.C.No.4377/2016 ): It is the
contention of the guardian of the minor petitioner that his daughter is
aged about 13 years and she has sustained injuries in the road traffic
accident. The guardian of the minor petitioner is examined as PW-2
and he has reiterated the averments of the petition in his affidavit
evidence. In order to substantiate his contention he has produced
wound certificate which is marked at Ex.P.15 and it discloses that
minor petitioner sustained swelling in the mid 1/3rd of thigh and x-ray
shows fracture of shaft of femur and doctor has opined that the injury
No.1 is grievous in nature. Further, PW-2 has produced discharge
summary which is marked at Ex.P.16 and it discloses that the
petitioner sustained fracture of right femur and she had undergone
surgery of Closed reduction internal fixation. She took treatment as
inpatient from 11.6.2016 to 18.6.2016 i.e., for a period of 7 days. As
per Ex.P.17 minor petitioner was again admitted to hospital on
22.5.2016 to 10.06.2016 i.e., for a period of 20 days. In all petitioner
was admitted in hospital for a period of 27 days. The petitioner has
produced medical bills to the tune of Rs.6,375/-. The PW-2 was not
cross-examined.
SCCH 1 19 MVC No.4376-4380 /2016
30. In order to prove the disability suffered by the minor
petitioner the doctor is examined as PW-5 and he has stated in his
evidence that the petitioner has suffered closed fracture shaft of right
femur and doctor has opined that the injury is grievous in nature. He
says minor petitioner was operated on 25.05.2016 with closed
reduction and internal fixation with IM nail for fracture of shaft of
right femur under spinal Anaesthesia. X-ray shows union of fracture
and she complaints of pain in the right lower limb on walking. He has
assessed the physical disability for whole body at 13.88%.
31. Now let me appreciate both the oral and documentary
evidence available before the Court. On perusal of the wound
certificate which is marked as Ex.P.15 it is clear that, the petitioner
has sustained the fracture of shaft of femur and she underwent
surgery of closed reduction internal fixation with IMIL nailing. Minor
petitioner was given treatment as inpatient for a period of 27 days.
PW-2 has spent an amount of Rs.6,375/-. The doctor has assessed the
physical disability suffered by the petitioner at 13.88% and it appears
little on higher side because in the case on hand only petitioner
suffered fracture of shaft of right femur and the petitioner is also aged
13 years and the recovery is quick and at the young age progress of
SCCH 1 20 MVC No.4376-4380 /2016
the treatment was also very fast and recent x-ray shows union of
fracture. Hence, I have taken the disability suffered by the petitioner
at 10% to whole body. Under the circumstances, it is a fit case to rely
upon the judgment of Apex Court 2013 ACJ 2445 (Mallikarjuna Vs.
Divisional Manager, National Insurance Co. Ltd., and another). In this
judgment the Apex Court observed the disability within 10% , a
compensation of Rs.1,00,000/- has to be awarded and more than 10%,
an amount of Rs.3,00,000/- has to be awarded. The petitioner has
sustained fracture of shaft of femur, hence, it is a fit case to award
global compensation of Rs.1,00,000/- to the petitioner.
32. During the treatment of the minor petitioner, the parents
could not attend their duty and might have lost income. The minor
petitioner is aged about 13 years and he requires personal care of the
parents during the time of treatment. Hence, I award a sum of
Rs.25,000/- as compensation towards loss of income of the parents
during the period of treatment of the minor petitioner.
33. It is the case of the guardian of the minor petitioner that
during the treatment period the minor petitioner underwent surgery of
CRIF with IM nailing. Doctor PW-5 in his evidence he has stated that
minor petitioner needs one more surgery for implant removal which
SCCH 1 21 MVC No.4376-4380 /2016
costs approximately Rs.40,000/- at their hospital. The doctor has not
produced any estimation regarding the removal of implants. Hence, I
award a sum of Rs.25,000/- towards future medical bills.
34. In all the petitioner in M.V.C.No.4377/2016 is entitled for a
total compensation of Rs.1,50,000/- as compensation .
35. ISSUE No.2: (in M.V.C.No.4378/2016): It is the contention
of the guardian of the minor petitioner Chandan that his son is aged
about 7 years and he has sustained injuries in the road traffic
accident. In order to substantiate his contention he has produced
wound certificate which is marked at Ex.P.20 and it discloses that
minor petitioner sustained cut lacerated wound over right forehead,
abrasion over right maxillary region, cut lacerated wound over right
leg anterior medial aspect, x-rays shows fracture of tibia and fibular
compound type III A. Doctor has opined the above said injuries are
grievous in nature. Further, PW-3 has produced discharge summary
which is marked at Ex.P.21 and it discloses that the petitioner
sustained fracture of right tibia segmental fracture and fibula fracture,
type III open both bone and he underwent CRIF with TENS and
wound debridement. He took treatment as inpatient from 22.5.2016 to
SCCH 1 22 MVC No.4376-4380 /2016
10.6.2016 i.e., for a period of 20 days. The petitioner has produced
medical bills to the tune of Rs.10,533/-. The PW-2 was not cross-
examined.
36. In order to prove the disability suffered by the minor
petitioner the doctor is examined as PW-5 and he has stated in his
evidence that the petitioner has suffered Grade III a compound
segmental fracture of right tibia and fibula and doctor has opined that
the injury is grievous in nature. He says minor petitioner was treated
with CRIF with TENS +wound debridement . On recent follow up he
had limping of right lower limb, with soft tissue swelling over the
fracture area, scar healed by secondary intention and on radiological
examination there is valgus mal-union at the distal fracture site of
right tibia. Right fibular fracture united completely. He has assessed
the total physical disability for right lower limb at 53.41% and to
whole body at 17.8%.
37. Now let me appreciate both the oral and documentary
evidence available before the Court. On perusal of the wound
certificate which is marked as Ex.P.15 it is clear that, the petitioner
has sustained the Grade III a compound segmental fracture of right
tibia and fibula and he underwent surgery of closed reduction internal
SCCH 1 23 MVC No.4376-4380 /2016
fixation with TENS. Minor petitioner was given treatment as inpatient
for a period of 20 days. PW-3 has spent an amount of Rs.10,533/-.
The doctor has assessed the physical disability suffered by the
petitioner at 17.8% and it appears little on higher side because in the
case on hand only petitioner suffered Grade III a compound segmental
fracture of right tibia and fibula and the petitioner is also aged 7 years
doctor has opined that there is mal union of fracture of right tibia and
fibula. Hence, I have taken disability suffered by the minor petitioner
at 15% to whole body. Under the circumstances, I would like to refer
the judgment of Apex Court reported in 2013 ACJ 2445
(Mallikarjuna Vs. Divisional Manager, National Insurance Co. Ltd.,
and another) wherein it is held that " .........while considering the
claim by a victim child, it would be unfair and improper to follow
the structured formula as per the second schedule to the Motor
Vehicles Act for reasons more than one . The main stress in the
formula is on pecuniary damages. For children there is no income.
The only indication in the second Schedule for non-earning persons
is to take the notional income as Rs.15,000/per year. A child cannot
be equated to such a non-earning person. Therefore, the
compensation is to be worked out under the non-pecuniary heads .
SCCH 1 24 MVC No.4376-4380 /2016
The main elements of damage in the case of child victims are the
pain, shock, frustration, deprivation of ordinary pleasures and
enjoyment associated with healthy and mobile limbs. The
compensation awarded should enable the child to acquire something
or to develop a lifestyle which will offset to some extent the
inconvenience or discomfort arising out of the disability.
Appropriate compensation for disability should take care of all the
non-pecuniary damages. Though it is difficult to have an accurate
assessment of the compensation in the case of children suffering
disability on account of motor vehicle accident , having regard to the
relevant factors, precedents and the approach of various High
Court, we are of the view that the appropriate compensation on all
other heads in addition to the actual expenditure should be, if the
disability is above 10 percent and upto 30 percent to the whole body,
Rs.3,00,000/-, Upto 60 percent Rs.4,00,000/-, upto 90 percent
Rs.5,00,000/- and above 90 percent , it should be Rs.6,00,000/-
............". Hence, I award a sum of Rs.3,00,000/- as global
compensation to the minor petitioner which includes pain and
suffering, food, nourishment and conveyance , future loss of income
SCCH 1 25 MVC No.4376-4380 /2016
due to disability, loss of parents income, Medical bills and future
medical bills and loss of amenities.
38. ISSUE No.2: (in M.V.C.No.4379/2016 ): It is the
contention of the guardian of the minor petitioner Chidanand that his
son is aged about 8 years and he has sustained injuries in the road
traffic accident. In order to substantiate his contention he has
produced wound certificate which is marked at Ex.P.24 and it
discloses that minor petitioner sustained swelling and tenderness over
right wrist joint, x-ray shows fracture of distal 1/3rd radius, blunt
injury abdomen . Doctor has opined the injury No.1 is grievous in
nature and injury No.2 is simple in nature. Further, PW-3 has
produced discharge summary which is marked at Ex.P.25 and it
discloses that the petitioner sustained blunt trauma chest and fracture
of right fracture of distal radius. He took treatment as inpatient from
22.5.2016 to 24.5.2016 i.e., for a period of 2 days. The guardian of the
minor petitioner has produced medical bills to the tune of Rs.2,560/-.
The PW-3 was not cross-examined.
39. Now let me appreciate both the oral and documentary
evidence available before the Court. On perusal of the wound
certificate which is marked as Ex.P.24 it is clear that, the petitioner
SCCH 1 26 MVC No.4376-4380 /2016
has sustained swelling and tenderness over right wrist joint, x-ray
shows fracture of distal 1/3rd radius, blunt injury abdomen. Minor
petitioner took treatment as inpatient for a period of 2 days and minor
guardian has spent medical bills to the tune of Rs.2,560/- .The Apex
Court in the Judgment 2013 ACJ 2445 (Mallikarjuna Vs. Divisional
Manager, National Insurance Co. Ltd., and another) has awarded
compensation of Rs.1,00,000/- in a case of disability of 10%. In the
case on hand , the guardian of the minor petitioner has not examined
the Doctor as regards to the disability.
40. It is important to note that the petitioner is a minor who is
aged about 8 years and has sustained swelling and tenderness over
right wrist joint, x-ray shows fracture of distal 1/3rd radius, blunt
injury abdomen and the petitioner took treatment at Sapthagiri
hospital and the cost of medical expenses comes around Rs.2,560/-.
For having considered the nature of the injury i.e., swelling and
tenderness over right wrist joint, x-ray shows fracture of distal 1/3rd
radius, blunt injury abdomen and PW-3 has not examined the doctor
who has treated the injured. For having taken note of the treatment
provided to the injured and the amount spent towards medical bills
and in the absence of medical evidence before the Court, it is a fit case
SCCH 1 27 MVC No.4376-4380 /2016
to rely upon the judgment of Apex Court 2013 ACJ 2445
(Mallikarjuna Vs. Divisional Manager, National Insurance Co. Ltd.,
and another). In this judgment the Apex Court observed the disability
within 10% , a compensation of Rs.1,00,000/- has to be awarded and
more than 10% , an amount of Rs.3,00,000/- has to be awarded. I have
already pointed out that doctor is not examined and injured is 8 years
and has sustained swelling and tenderness over right wrist joint, x-ray
shows fracture of distal 1/3rd radius, blunt injury abdomen, hence, it is
a fit case to award global compensation of Rs.1,00,000/- to the
petitioner which includes pain and sufferings, food, nourishment and
conveyance , loss of parents income, Medical bills and loss of
amenities.
41. ISSUE No.2 (in M.V.C. No.4380/2016: It is the case
of the petitioner that on account of the accident she has sustained
injuries. In order to prove her case, she relied upon Ex.P.2 wound
certificate and it discloses that she sustained cut lacerated wound over
right knee, abrasion over vertex region, cut lacerated wound over
dorsal aspect of nose, x-ray shows fracture of right nasal bone,
fracture of right frontal process of maxillary bone, cut lacerated
wound over right eyebrow. Doctor has opined the injuries NO.2 to 4
SCCH 1 28 MVC No.4376-4380 /2016
are grievous in nature and injury NO.1 is simple in nature. She took
treatment at Sapthagiri hospital as inpatient from 22.5.2016 to
30.05.2016 i.e., for a period of 8 days.
42. Now, let me appreciate the oral and documentary evidence
available on record. The petitioner has produced wound certificate
which is marked at Ex.P.28 and the same discloses that petitioner has
sustained cut lacerated wound over right knee, abrasion over vertex
region, cut lacerated wound over dorsal aspect of nose, x-ray shows
fracture of right nasal bone, fracture of right frontal process of
maxillary bone, cut lacerated wound over right eyebrow. Petitioner
has produced medical bills to the tune of Rs.3,664/- and the same is
not supported by any prescriptions. The petitioner also produced
discharge summary at Ex.P.29 which discloses she was admitted to
hospital on 25.05.16 to 30.05.2016 i.e., for a period of 8 days. The
petitioner has taken conservative treatment. Doctor has not been
examined in support of her claim that she has sustained permanent
disability. At the time of the accident petitioner is aged about 30 years
and claiming that she was an agriculturist and earning a sum of
Rs.20,000/p.m.. For having considered all these aspects into
consideration it is a fit case to award global compensation of
SCCH 1 29 MVC No.4376-4380 /2016
Rs.1,00,000/- which includes pain and suffering, medical expenses,
incidental expenses such as conveyance, food and nourishment , loss
of income during the period of treatment , loss of amenities and other
expenses.
43. Relying upon a judgment of the Apex Court reported in
2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna
Mohapatra and others), with regard to interest at the rate of 9% p.a. on
the compensation amount, in para 13 of the judgment, the Apex Court
held that Insurance Company is also liable to pay interest at the rate of
9% p.a. from the date of application till the date of payment and also
by following the principles laid down in (2011) 4 SCC 481: (AIR
2012 SC 100) (Municipal Council of Delhi Vs. Association of
Victims of Uphaar Tragedy). In view of the above judgments with
regard to the rate of interest, and also it is settled law that while
awarding interest on the compensation amount, the Court has to take
into account the rate of interest of the nationalized bank and the rate
of interest at 9% cannot said to be on the higher side. Accordingly,
the petitioner is entitled to interest at the rate of 9% p.a.
44. As regards the liability is concerned the respondent No.1
being the owner and respondent No.2 being the insurer of the car
SCCH 1 30 MVC No.4376-4380 /2016
bearing No. KA-32-NO-183 are jointly and severally liable to pay
compensation to the petitioners in all the cases. However, primary
liability is fixed on respondent No.2, insurance company to satisfy the
award. Hence, this issue is answered accordingly.
45. Issue No.3: In view of the discussions made above, I
proceed to pass the following:
ORDER
MVC 4376/2016 The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for total compensation of Rs.3,34,820/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and he is directed to deposit the compensation amount within two months from the date of this order.
SCCH 1 31 MVC No.4376-4380 /2016 Out of the compensation amount, 50% with proportionate interest is ordered to be invested in high yielding fixed deposit in his name in any of the nationalized or scheduled bank of his choice for a period of 5 years. Remaining amount with proportionate interest is ordered to be released to him .
MVC 4377/2016 The petition filed by the petitioner is allowed in part against the respondents.
The minor petitioner is entitled for global compensation of Rs.1,50,000/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and he is directed to deposit the compensation amount within two months from the date of this order.
Out of the compensation amount to which the minor petitioner is entitled, Rs.50,000/- with proportionate interest is to be released in the name of guardian of the petitioner . Remaining amount with proportionate interest shall be kept in F.D. in the name of minor SCCH 1 32 MVC No.4376-4380 /2016 petitioner till she attains majority. Guardian of the petitioner shall not create any encumbrances on the F.D. amount. MVC 4378/2016 The petition filed by the petitioner is allowed in part against the respondents.
The minor petitioner is entitled for global compensation of Rs.3,00,000/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and he is directed to deposit the compensation amount within two months from the date of this order.
Out of the compensation amount to which the minor petitioner is entitled, Rs.1,00,000/- with proportionate interest is to be released in the name of guardian of the petitioner . Remaining amount with proportionate interest shall be kept in F.D. in the name of minor petitioner till he attains majority. Guardian of the petitioner shall not create any encumbrances on the F.D. amount.
SCCH 1 33 MVC No.4376-4380 /2016 MVC 4379/2016
The petition filed by the petitioner is allowed in part against the respondents.
The minor petitioner is entitled for global compensation of Rs.1,00,000/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and he is directed to deposit the compensation amount within two months from the date of this order.
Out of the compensation amount to which the minor petitioner is entitled, Rs.25,000/- with proportionate interest is to be released in the name of guardian of the petitioner . Remaining amount with proportionate interest shall be kept in F.D. in the name of minor petitioner till he attains majority. Guardian of the petitioner shall not create any encumbrances on the F.D. amount. M.V.C.No.4380/2016:
The petition filed by the petitioner is allowed in part against the respondents.
SCCH 1 34 MVC No.4376-4380 /2016 The petitioner is entitled for global compensation of Rs.1,00,000/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and he is directed to deposit the compensation amount within two months from the date of this order.
As the compensation amount is meager, the same along with interest accrued thereon is ordered to be released to the petitioner .
Advocate's fee is fixed at Rs.1,000/- in each case. Original of the judgment shall be kept in MVC No.4376/2016 and its copies are kept in MVC No.4377/2016, 4378/16, 4379/2016 and M.V.C.No.4380/2016.
Draw decree accordingly (Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 10th day of April 2017) (H.P.SANDESH,) Member, Prl. M.A.C.T. Bangalore.
SCCH 1 35 MVC No.4376-4380 /2016
ANNEXURES:
Witnesses examined on behalf of the petitioners:
P.W.1 : Sri Venkatesha P.W.2 : Jayanna P.W.3: Nagaraja P.W.4 : Pushpalatha P.W.5 : Dr.Girish H.Rudrappa
Documents marked on behalf of the petitioners:
Ex.P-1 : Copy of FIR
Ex.P-2 : Copy of mahazar
Ex.P-3 : Copy of IMV Report
Ex.P-4 : Copy of wound certificate
Ex.P-5 : Copy of charge sheet
Ex.P-6 : Discharge summary
Ex.P-7 : Medical bills
Ex.P-8 : Prescriptions(36)
Ex.P-9 : Notarised copy of Aadhaar card (original
compared)
Ex.P-10 : Notarised copy of driving licence (original
compared)
Ex.P.11 RTC (2)
Ex.P.12 Milk Pass book
Ex.P.13 OPD book
Ex.P.14 X-rays(3)
Ex.P.15 Copy of wound certificate
Ex.P.16 & 17 Discharge summaries
Ex.P.18 Medcial bills
Ex.P.19 Notarised copy of Aadhar card(original
compared)
SCCH 1 36 MVC No.4376-4380 /2016
Ex.P.20 Copy of wound certificate
Ex.P.21 Discharge summary
Ex.P.22 Medical bills
Ex.P.23 Notarised copy of Aadhar card (original
compared)
Ex.P.24 Copy of wound certificate
Ex.P.25 Discharge summary
Ex.P.26 Medical bills
Ex.P.27 Notarised copy of Aadhar card (original
compared)
Ex,.P.28 Copy of wound certificate Ex.P.29 Discharge summary Ex.P.30 Medical bills Ex.P.31 Notarised copy of Aadhar card (original compared) Ex.P.32 Inpatient record in MVC No.4376/2016 Ex.P.33 X-rays(5) Ex.P.34 Clinical notes Ex.P.35 Admission record in MVC No.4377/16 Ex.P.36 OPD book Ex.P.37 X-rays (4) Ex.P.38 Clinical notes Ex.P.39 Inpatient record in MVC No.4378/16 Ex.P.40 X-rays Ex.P.41 Clinical notes SCCH 1 37 MVC No.4376-4380 /2016 Witnesses examined on behalf of the respondents :
-Nil-
Documents marked on behalf of the respondents:
-Nil-
(H.P.SANDESH) Member, Prl., M.A .C.T. Bangalore