Bangalore District Court
In M.V.C.No.5498/2013 Himself Has Been ... vs No.2 on 11 May, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 11th day of May, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B. (Spl.), L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.5497/2013
C/w. M.V.C.No.5498/2013
Sri. C.P.Suvarna
W/o K.Nagappa,
Aged about 50 years,
R/a No.363, 3rd Main, 2nd Phase, ... PETITIONER IN
Opp.Nadigar College, M.V.C.No.5497/2013
Manjunathnagar,
Bangalore-10.
.
(By Sri.B.M.Chandrashekar, Adv.,)
K.Nagappa
S/o Late Kallappa,
Aged about 60 years,
R/a No.363, 3rd Main, 2nd Phase,
Opp.Nadigar College,
....PETITIONER IN
Manjunathnagar,
M.V.C.No.5498/2013
Bangalore-10.
(By Sri. B.M.Chandrashekar, Adv.,)
V/s
1.BSCPL Infrastructure Ltd.,
2 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
Ambha Nilaya, Sampege Road,
Gandhi Circle, Channarayapatna,
Hassan District-573116.
2. The New India Assurance Co. Ltd.,
Chandana Complex,
Harsha Mahal Marg,
Hassan-573201.
(Policy No.67240131120100013889
Policy period: 08.03.2013 to ....
07.03.2014) RESPONDENTS IN
BOTH THE CASES
3. The New India Assurance Co.Ltd
T.P.Hub, No.9/2, Mahalakshmi
Chambers, M.G.Road,
Bangalore.
(R-1 By Sri. A.Ravi Shanker, Adv.,)
(R-2 and 3 By Sri. K.Nagarajaiah,
Adv.,)
COMMON JUDGMENT
As per the Order dated 19.08.2014 passed in
M.V.C.No.5497/2013, M.V.C.No.5498/2013 is clubbed with the
M.V.C.No.5497/2013 and the common evidence is recorded in the
said case. Hence, both M.V.C.No.5497/2013 and
M.V.C.No.5498/2013 are pending for consideration and disposal by
passing a common judgment.
2. The Petitioner in M.V.C.No.5497/2013 has filed the said
petition as against the Respondents No.1 to 3 under Section 166 of
the Motor Vehicles Act, 1989 praying to award compensation of
3 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
Rupees 40,50,000/-, with interest at the rate of 18% p.a., from the
date of accident.
3. The brief averments of the Petitioner's case in
M.V.C.No.5497/2013 are as follows;
a) Her husband, namely, Nagappa was working in KSRP as
Assistant Commandant, prior to retirement, he was there in the
Ravindranagar, Hassan Division Branch and he was interacting
with land grant proposal with grant committee. He was retired on
18th day before the accident i.e., only on 30.04.2013. With regard to
grant of land on the very duty, he came to Bangalore on
18.05.2013 along with subsequent officer, namely, Vijayakumar
K.K and his driver, namely, K.G.Raghu. After completion of their
land grant work at Bangalore, they were about to return to Hassan.
Since her husband, namely, Nagappa was not having good health
on the said day, she was also accompanied him from house located
at Bangalore. On 21.05.2013 at around 4.30 p.m., she left
Bangalore along with her husband Nagappa, subsequent KSRP
Officer K.K.Vijaykumar and Driver Raghu all of them were
proceeding on Jeep bearing No.KA-13-G-662 towards Hassan. The
driver of the Jeep namely, Raghu was driving his vehicle in a
careful and cautious manner on extreme left side of the road by
following all the traffic rules from Bangalore to Hassan i.e., east to
west on his left side road. At around 8.00 p.m., when they reached
next to Kodibelagola Gate, near Gowdagere, Bangalore-Mangalore
road, the Tipper Lorry bearing No.CG-JB- belonging to the
Respondent was driven by its driver in a rash and negligent
4 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
manner which is endangering to human life and driven by its
driver, recklessly, unmindfully without observing the movements of
other vehicle and pedestrians, came in a wrong way in one way in a
opposite direction i.e., to his right side road after crossing center
median to the left side road of the Jeep, by violating traffic rules
and dashed against their vehicle. Due to the impact, she sustained
severe head injury, multiple facial bone fracture (Frontal bone,
maxillary, zygomatic, nasal bone, mandible, orbital bones were
fractured), multiple facial laceration, multiple long bone fracture,
fracture of distal end left radius, communited fracture distal, right
femur, fracture proximal right humerus, fracture both bones right
forearm, hemorrhagic shock, left III nerve injury, loss of tooth, rib
fracture, metatarsal and metacarpals and deep cut injuries,
lacerations, abrasion over the body.
b) Immediately, she was shifted to local Hospital, then, she
was shifted to B.G.S.Hospital, Mysore, then she was shifted to
spine & Ortho Care Hospital, Bangalore. She was admitted as an
inpatient for more than one month time in B.G.S. Global Hospital
Hospital and as on now, she is in Hospital as inpatient. She
underwent several medical, clinical examinations and laboratory
tests and X-rays were done and the Doctors were treated her by
conducting tracheotomy, wound debridement, elevation depressed
frontal bone, ACF repair using pericranial graft and fibrin blue
under G.A, ORIF maxilla, mandible, bilateral, zygoma, frontal bone
grafting, orbital floor repair, nasoehmoid reconstruction, nasal soft
tissue and facial wounds repair, CRIF with external fixator of distal
end of left radius, ORIF with bridge plating with condylar plating of
5 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
comminuted fracture distal right femur, ORIF with plate and screw
of fracture proximal right humerus, ORIF with LCP and bone
grafting for fracture both bones right forearm and also she
underwent for bone grafting, muscle grafting, skin grafting, blood
transfusion and other surgeries were done.
c) She is under treatment in Hospital and she is there in
Hospital as inpatient. She was advised by the Doctors for a bed rest
with regular follow up treatment for eight months and she herself
and her husband has spent more than Rupees 19,00,000/-
amount towards medical expenses as on now treatment is still
going on. She is getting expenses more than five to six thousand
per day even now and also she has spent towards conveyance, food
and nourishment charges and other for her incidental charges.
d) She is still suffering from severe pain, she has lost one
eye sight, she is suffering from loss of memory, repeated headache,
running tears, loss of smell and hearing. She cannot move her jaw ,
she cannot open her mouth to even small extent she cannot move
her neck, she lost the taste, she has become dull, she is bed
ridden, she cannot move from her bed even independently, she is
suffering from unbearable pain and she is in deep mental agony.
Still there is a swelling with gross of deformity on her entire body.
The movement of her physical movement is completely restricted
and painful.
e) Due to the said accidental injuries, she has become too
weak and she cannot stand, squat, climb stairs, walk and cannot
bear weight on it and she cannot lift weight, fold, twist, she cannot
6 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
do her normal work as she was doing earlier. She was physically
strong and hale and healthy before the accident. She is advised to
go for another operation in the near future days for set righting her
health disorder and also for required internal and external fixation
and also removal of implants and she was doing physical hard
work, she was doing house hold work and she was also dealing
with Tupperware and also with Saris earning Rupees 10,000/- per
month. She is suffering lot mental and physically, she was also
bread earning member in the family and she has aged in laws,
husband and grand children who are completely depended on her
for daily needs. The attendant attending her as on now and she is
not in a position to discharge her day to day work. She was hale
and healthy and hard working before the accident and the nature
of job, she was engaged, it needs physical fitness. Now she cannot
discharge her duty effectively due to disability and pain. It is
relevant to state that, she was aged 52 years at the time of
accident.
f) The Channrayapatna TownPolice have registered a
Criminal case against the driver of the Tipper Lorry bearing NO.CG-
04-JB-3973 in Crime No.204/2013 and the said Police have also
filed a charge Sheet against the said offending vehicle driver after
thorough investigation.
g) The accident was taken place solely on account of the
rash and negligent driving of the driver belonging to the 1st
Respondent. There was absolutely no negligence on her part or her
vehicle driver. The said offending vehicle was duly insured with the
2nd Respondent. The policy was valid and was in force at the time of
7 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
accident. The driver of the said Tipper Lorry bearing No.CG-04-JB-
3973 was holding a valid driving licence at the relevant point of
time. Therefore, the 1st and 2nd Respondents are jointly and
severally liable to pay compensation to her.
h) She claims the compensation on the following grounds:
1) Towards Medical expenses Rs. 19,00,000/-
2) Towards future medical expenses Rs. 5,00,000/-
3) Towards Food and nourishment Rs. 1,50,000/-
4) Towards pain and sufferings Rs. 3,50,000/-
5) Towards loss of earnings during
the period of treatment Rs. 1,00,000/-
6) Towards future prospective
Life & happiness Rs. 2,00,000/-
7) Towards loss of future income
and amenity Rs. 5,00,000/-
8) Towards permanent disability Rs. 3,50,000/-
______________
Total Rs.40,50,000/-
______________
Hence, this Petition.
4. Initially, though the notice was duly served on the
Respondent No.1, it was remained absent and hence, it was palced
as exparte on 02.12.2013. Later, the Respondent No.1 has
appeared before this Tribunal through its Learned Counsel and the
exparte order is set aside and it is taken on file. The Respondent
No.1 has filed the written statement.
5. In response to the notice, the Respondents No.2 and 3
have appeared before this Tribunal through their Learned Counsel
and have filed the written statement.
8 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
6. The Respondent No.1 inter-alia denying the entire case
of the Petitioner in M.V.C.No.5497/2013, has further contended as
follows;
a) The claim petition is not maintainable either in law or
on facts.
b) The alleged accident has taken place only on account of
rash and negligent driving of the Driver of the Jeep bearing No.KA-
13-G-662. Admittedly, the said vehicle belonged to the Police
Department and the Investigating Police have purposefully filed the
criminal case against the driver of the vehicle to cover up the acts
and misdeeds of the Driver, who was on the wheels of the Police
Jeep. It is very clear that, the accident has occurred only on
account of rash and negligent driving of the driver of the Jeep
bearing No.KA-13-G-662. Further, the driver, owner and the
Insurance Company of the vehicle bearing No.KA-13-G-662 are
necessary, required and proper parties to the present proceedings.
In the absence of these persons on record, the petition suffers from
non-joinder of necessary parties.
c) The vehicle bearing No.CG-04-JB-3978 is duly insured
with the second Respondent-New India Assurance Co. Ltd, covering
the period 8.3.2013 to 7.3.2014 and the Lorry was driven by one
Sri.Wilbert.A at the material time of accident. The said person
possessed valid and effective driving licence. Therefore, the liability
if any to be fastened on the first Respondent, if any, will have to be
borne by the second Respondent, who holds the insurance under
9 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
the contract of insurance. The second Respondent would be
statutorily liable to pay the compensation.
d) The averments regarding injuries, nature of
treatment as well the physical disability stated by the claimant
is an exaggeration to seek the sympathy of the Court. The
heads of compensation claimed by the claimant is on the
higher side, for which, the claimant is not at all entitled.
Hence, prayed to dismiss the petition, with costs.
7. The Respondents No.2 and 3 inter-alia denying the
entire case of the Petitioner in M.V.C.No.5497/2013, have filed
common written statement and have further contended as follows;
a) The claim petition filed by the Petitioner seeking
compensation is not maintainable either in law or on facts.
b) This Hon'ble Court has no jurisdiction to entertain
this petition.
c) They have no knowledge about the registration of the
case by Channarayapatna Police in Crime No.204/2013.
d) The policy particulars furnished by the Petitioner at
claim petition is not correct and it is strictly subject to verification
and if at all the policy particulars furnished by the Petitioner is
correct, they will produce insurance policy extract before this
Hon'ble Court at that, time of evidence.
10 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
e) The total claim of Rupees 40,50,000/- along with
interest claimed by the Petitioner is totally exhorbitant,
fashionable one and without any basis.
f) The driver of the said Tipper Lorry had not possessed
valid and effective driving licence to drive the Lorry as on the date
of the alleged accident. No fitness certificate and permit of the
Tipper Lorry as on the date of accident.
g) There is a dereliction of statutory duty on the part of
the officer in charge of the jurisdictional Police in non-forwarding
the copy of report neither to the 2nd Respondent nor to this
Hon'ble Court within 30 days from the date of recording
information regarding alleged accident as contemplated under
Section 158(6) of the Motor Vehicle Act 1988 and thus for taking
necessary action, such erred Police officer is to be summoned by
the Hon'ble Court by exercising the powers conferred upon it by
virtue of Rules 237 and 248 of the Karnataka Motor Vehicle
Rules,1989.
h) The 1st Respondent is duty bound under Section
134(c) of the Motor Vehicles Act, 1988 to inform and furnish the
particulars as envisaged in the Section in connection with the
alleged accident to the 2nd Respondent and further the 1st
Respondent is required to co-operate with the 2nd Respondent in
contesting the claim as per the terms and conditions of the policy,
if any issued to him and in the present case, if in case, the
11 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
liability is fastened upon the 2nd Respondent, they are debarred
from seeking indemnification from 2nd Respondent due to the
lapses on their part to discharge the statutory and contractual
obligations.
i) They may be permitted to contest the above case on all
the grounds in the event, if the 1st Respondent failed to
participate in the matter by permitting them under all grounds.
j) The petition is bad for non-joinder of necessary parties
namely, insurer of Jeep bearing Registration No.KA-13-G-662 has
contributed negligence to the alleged accident to an extent of
100%.
l) Incase of any award, such award amount not to carry
interest more than 5% p.a.
m) The Petitioner is put to strict proof that, she has not
filed any other petition in any other forum, Tribunal/Authorities
on the same cause of action. Hence, prayed to dismiss the
petition with costs.
8. The Petitioner in M.V.C.No.5498/2013 has filed the said
petition as against the Respondents No.1 to 3 under Section 166 of
the Motor Vehicles Act, 1989 praying to award compensation of
Rupees 6,15,000/-, with interest at the rate of 18% p.a., from the
date of accident.
12 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
9. The brief averments of the Petitioner's case in
M.V.C.No.5498/2013 are as follows;
a) He was working in KSRP as Assistant Commandant,
prior to retirement he was there in the Ravindranagar, Hassan
Division Branch and he was interacting with land grant proposal
with grant committee. He was retired on 18th day before the
accident i.e., only on 30.04.2013 with regard to grant of land on the
very duty he came to Bangalore on 18.05.2013 along with
subsequent officer namely Vijayakumar K.K and his driver namely
K.G.Raghu. After completion of their land grant work at Bangalore
they were about to return to Hassan. Since, her husband namely,
Nagappa was not having good health on the said day, she also
accompanied him from house located at Bangalore. That, on
21.05.2013 at around 4.30 p.m., he left Bangalore with his wife,
subsequent KSRP Officer K.K.Vijaykumar and Driver Raghu all of
them were proceeding on Jeep bearing No.KA-13-G-662 towards
Hassan, and the driver of the Jeep namely Raghu was driving his
vehicle in a careful and cautious manner on extreme left side of the
road by following all the traffic rules from Bangalore to Hassan i.e.,
east to west on his left side road at around 8.00 p.m., when they
reached next to Kodibelagola Gate, near Gowdagere, Bangalore-
Mangalore road, the Tipper Lorry bearing No.CG-04-JB-3978
belonging to the Respondent was driven by its driver in a rash and
negligent manner which is endangering to human life and driven by
its driver, recklessly, unmindfully without observing the
movements of other vehicle and pedestrians came in a wrong way
in one way in a opposite direction i.e., to his right side road after
13 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
crossing center median to the left side road of the Jeep, violating
traffic rules and dashed against his vehicle due to the impact, he
sustained severe head injury, deep cut injuries, lacerations,
abrasion over the body.
b) Immediately, he was shifted to local Hospital then he
was shifted to B.G.S.Hospital, Mysore, and he was admitted as an
inpatient for more than one week, he underwent several medical,
clinical examinations and laboratory tests and X-rays were done
and the Doctors were treated him conservatively, he was advised by
the Doctors for a bed rest with regular follow up treatment for 8
months and he has spent more than Rupees 20,000/- towards
medical expenses and also he has spent towards conveyance, food
and nourishment charges and other for his incidental charges.
c) He is still suffering from severe pain, he is suffering
from unbearable pain and he is in deep mental agony. Still there is
a swelling with gross deformity on his body. The movement of his
upper and lower limb were physical movements is completely
restricted and painful.
d) Due to the said accidental injuries, he has become too
weak and he cannot stand, squat, climb stairs, walk and cannot
bear weight on it and she cannot lift weight, fold, twist, he cannot
do her normal work as he was doing earlier and he was physically
strong and hale and healthy before the accident. He is advised to go
for another operation in the near future days, he was doing
physical hard work. He is suffering lot mental and physically, he
was also bread earning member in the family and he has wife and
14 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
grand children who are completely depended on her for daily needs.
The attendant attending him initially, he was hale and healthy and
hard working before the accident and the nature of job, she was
engaged, it needs physical fitness. Now she cannot discharge his
duty effectively due to disability and pain. It is relevant to state
that, she was aged 60 years at the time of accident.
e) The Channrayapatna TownPolice have registered a
Criminal case against the driver of the Tipper Lorry bearing NO.CG-
04-JB-3973 in Crime No. 204/2013 and the saidPolice have also
filed a charge Sheet against the said offending vehicle driver after
thorough investigation.
f) The accident was taken lace solely on account of the
rash and negligent driving of the driver belonging to the 1st
Respondent, there was absolutely no negligence on the part of her
or her vehicle driver. The said offending vehicle was duly insured
with the 2dn Respondent. The policy was valid and was in force at
the time of accident. The drive of the said Tipper Lorry bearing
No.CG-04-JB-3973 was holding a valid driving licence at the
relevant point of time. Therefore, the 1st and 2nd Respondents are
jointly and severally liable to pay compensation to her.
g) He claims the compensation on the following grounds:
1) Towards Medical expenses Rs. 20,00,000/-
2) Towards future medical expenses Rs. 10,000/-
3) Towards Food and nourishment Rs. 10,000/-
4) Towards pain and sufferings Rs. 50,000/-
5) Towards loss of earnings during
the period of treatment Rs. 25,000/-
15 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
6) Towards future prospective
Life & happiness Rs. 1,00,000/-
7) Towards loss of future income
And amenity Rs. 2,00,000/-
8) Towards permanent disability Rs. 2,00,000/-
______________
Total Rs. 6,15,000/-
______________
Hence, this Petition.
10. Initially, though the notice was duly served on the
Respondent No.1, it was remained absent and hence, it was palced
as exparte on 02.12.2013. Later, the Respondent No.1 has
appeared before this Tribunal through its Learned Counsel and the
exparte order is set aside and it is taken on file. The Respondent
No.1 has filed the written statement.
11. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through her Learned Counsel and
has filed the written statement.
12. The Respondent No.1 inter-alia denying the entire case
of the Petitioner in M.V.C.No.5498/2013, has further contended as
follows;
a) The petition is not maintainable either in law or on
facts.
b) The alleged accident has taken place only on account of
rash and negligent driving of the Driver of the Jeep bearing No.KA-
13-G-662. Admittedly, the said vehicle belonged to thePolice
Department and the InvestigatingPolice have purposefully filed the
16 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
criminal case against the driver of the vehicle to cover up the acts
and misdeeds of the Driver who was on the wheels of thePolice
Jeep. It is very clear that, the accident has occurred only on
account of rash and negligent driving of the driver of the Jeep
bearing No.KA-13-G-662. Therefore, the averments made in
paragraph-22 of the claim petition is not correct and tenable.
Further, the driver, owner and the Insurance Company of the
vehicle bearing No.KA-13-G-662 are necessary, required and proper
parties to the above proceedings. In the absence of these persons
on record, the petition suffers from non-joinder of necessary
parties.
c) The vehicle bearing No.CG-04-JB-3978 is duly insured
with the second Respondent -New India Assurance Co. Ltd,
covering the period 8.3.2013 to 7.3.2014 and the Lorry was driven
by one Sri.Wilbert.A at the material time of accident. The said
person possessed valid and effective driving licence. Therefore, the
liability if any to be fastened on the first Respondent if any will
have to be borne by the second Respondent, who holds the
insurance under the contract of insurance. The second Respondent
would be statutorily liable to pay the compensation.
d) The averments regarding injuries, nature of
treatment as well the physical disability stated by the claimant
is an exaggeration to seek the sympathy of the Court. The
heads of compensation claimed by the claimant is on the
higher side for which the claimant is not at all entitled. Hence,
prayed to dismiss the petition, with costs.
17 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
13. The Respondents No.2and 3 inter-alia denying the
entire case of the Petitioner in M.V.C.No.5498/2013, have filed
common written statement and has further contended as follows;
a) The claim petition filed by the Petitioner seeking
compensation is not maintainable either in law or on facts.
b) This Hon'ble Court has no jurisdiction to entertain the
petition.
c) They have no knowledge about the registration of the
case by ChannarayapatnaPolice in Crime No.204/2013.
d) The policy particulars furnished by the Petitioner at
claim petition is not correct and it is strictly subject to verification
an if at all the policy particulars furnished by the Petitioner is
correct they will produce insurance policy extract before this
Hon'ble Court at that, time of evidence.
e) The total claim of Rupees 6,15,000/- along with
interest claimed by the Petitioner is totally exhorbitant,
fashionable one and without any basis.
f) The driver of the said Tipper Lorry had not possessed
valid and effective driving licence to drive the Lorry as on the date
of the alleged accident and hence the claim petition is liable to be
dismissed on this ground alone and also no fitness certificate and
permit of the Tipper Lorry as on the date of accident.
18 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
g) There is a dereliction of statutory duty on the part of
the officer in charge of the jurisdictional Police in not forwarding
the copy of report neither to the 2nd Respondent nor to this
Hon'ble Court within 30 days from the date of recording
information regarding alleged accident as contemplated under
Section 158(6) of the Motor Vehicle Act 1988 and thus, for taking
necessary action, such erred Police officer is to be summoned by
the Hon'ble Court by exercising the powers conferred upon it by
virtue of rules 237 and 248 of the Karnataka Motor Vehicle Rules,
1989.
h) The 1st Respondent is duty bound under Section
134(c) of the Motor Vehicles Act, 1988 to inform and furnish the
particulars as envisage in the Section in connection with the
alleged accident to the 2nd Respondent and further the 1st
Respondent is required to co-operate with the 2nd Respondent in
contesting the claim as per the terms and conditions of the policy,
if any issued to him and in the present case if in case, the liability
is fastened upon the 2nd Respondent, they are debarred from
seeking indemnification from 2nd Respondent due to the lapses on
their part to discharge the statutory and contractual obligations.
i) They may be permitted to contest the above case on all
the grounds in the event, if the 1st Respondent failed to
participate in the matter by permitting them under all grounds.
j) The petition is bad for non-joinder of necessary
parties, namely, insurer of Jeep bearing Registration No.KA-13-G-
19 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
662 has contributed negligence to the alleged accident to an
extent of 100%.
k) Incase of any award, such award amount not to carry
interest more than 5% p.a.
m) The Petitioner is put to strict proof that, he has not
filed any other petition in any other forum, Tribunal/Authorities
on the same cause of action. Hence, prayed to dismiss the
petition with costs.
14. Based on the above said pleadings, I have framed the
following Issues;
ISSUES
In M.V.C.No.5497/2013
1. Whether the Petitioner proves that, the
accident occurred due to rash and negligent
driving of the Tipper Lorry bearing
Registration No.CG-04-JB-3973 by its driver
and in the said accident, she sustained
injuries?
2. Whether the Petitioner is entitled for
compensation? If so, how much?
3. What Order or Award?
20 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
ISSUES
In M.V.C.No.5498/2013
1. Whether the Petitioner proves that, the
accident occurred due to rash and negligent
driving of the Tipper Lorry bearing Registration
No.CG-04-JB-3973 by its driver and in the
said accident, he sustained injuries?
2. Whether the Petitioner is entitled for
compensation? If so, how much?
3. What Order or Award?
15. In order to prove their case, the Petitioner in
M.V.C.No.5497/2013 herself has been examined as P.W.1 and
has also examined three witnesses as P.W.3, P.W.4 and P.W.5 by
filing the affidavits as their examination-in-chief and has placed
reliance upon Ex.P.1 to Ex.P.15 and Ex.P.24 to Ex.P.39 and the
Petitioner in M.V.C.No.5498/2013 himself has been examined as
P.W.2 and has also examined one witness as P.W.5 by filing the
affidavits as their examination-in-chief and has placed reliance
upon Ex.P.16 to Ex.P.23 and Ex.P.40 to Ex.P.41. On the other
hand, the Respondents have not adduced any evidence on their
behalf.
16. Heard the arguments. The Learned Counsel appearing
for the Petitioners has filed the written arguments.
17. My answers to the above said Issues are as follows;
21 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
In M.V.C.No.5497/2013
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the
Affirmative,
The Petitioner is
entitled for a sum of
Rupees 11,96,531/-
as compensation from
the Respondent No.2.
Issue No.3 : As per the final Order,
In M.V.C.No.5498/2013
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the
Affirmative,
The Petitioner is
entitled for a sum of
Rupees 65,574/- as
compensation from the
Respondent No.2.
Issue No.3 : As per the final Order,
for the following;
REASONS
18. ISSUE NO.1 in both the cases :- The P.W.1, who is the
Petitioner in M.V.C.No.5497/2013 has stated in her examination-
in-chief that, her husband, namely, Nagappa was working in KSRP
as Assistant Commandant, prior to retirement he was there in the
22 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
Ravindranagar, Hassan Division Branch and he was interacting
with land grant proposal with grant committee. She has further
stated that, her husband was retired on 18th day before the
accident i.e., only on 30.04.2013 with regard to grant of land on the
very duty he came to Bangalore on 18.05.2013 along with
subsequent officer, namely, Vijayakumar K.K and his driver,
namely, K.G.Raghu and after completion of their land grant work at
Bangalore, they were about to return to Hassan and since, her
husband, namely, Nagappa was not having good health on the said
day, she also accompanied him from house located at Bangalore.
She has further stated that, on 21.05.2013 at around 4.30 p.m.,
she left Bangalore with her husband Nagappa, subsequent KSRP
Officer K.K.Vijaykumar and Driver Raghu all of them were
proceeding on Jeep bearing No.KA-13-G-662 towards Hassan. She
has further stated that, the driver of the Jeep, namely, Raghu was
driving his vehicle in a careful and cautious manner on extreme left
side of the road by following all the traffic rules from Bangalore to
Hassan, i.e., east to west on his left side road at around 8.00 p.m.,
when they reached next to Kodibelagola Gate, near Gowdagere,
Bangalore-Mangalore road, the Tipper Lorry bearing No.CG-JB-
belonging to the Respondent was driven by its driver in a rash and
negligent manner which is endangering to human life and driven by
its driver, recklessly, unmindfully without observing the
movements of other vehicle and pedestrians came in a wrong way
in one way in a opposite direction i.e., to his right side road after
crossing center median to the left side road of the Jeep, violating
traffic rules and dashed against their vehicle. She has further
stated that, due to the impact, she sustained severe head injury,
23 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
multiple facial bone fracture (Frontal bone, maxillary, zygomatic,
nasal bone, mandible, orbital bones were fracture), multiple facial
laceration, multiple long bone fracture, fracture of distal end left
radius, communited fracture distal, right femur, fracture proximal
right humerus, fracture both bones right forearm, hemorrhagic
shock, left III nerve injury, loss of tooth, rib fracture, metatarsal
and metacarpals bones, dislocation and also fractures and suffers
from several ligament tear and deep cut injuries, lacerations,
abrasion over the body. She has further stated that, immediately,
she was shifted to local Hospital, then, she was shifted to Apollo
B.G.S.Hospital, Mysore, she was admitted as an inpatient for more
than two weeks time in B.G.S Hospital. She has further stated
that, on complication she admitted to Spine Care and Ortho Care
Hospital, Bangalore for the second time on 25.07.2013 till
05.08.2013. She has further stated that, again on severe pain and
complications in face, disturbed sleep, painful mastication and
third time she was admitted to Suguna Hospital, Bangalore on
05.06.2014 and discharged on 09.06.2014. She ahs further stated
that, the Channarayapatna Town Police have registered a criminal
case against the driver of the Tipper Lorry Bearing No.CG-04-JB-
3973 in Crime No.204/2013 and the said Police have filed a charge
sheet against the said offending Lorry bearing No.CG-04-JB-3973
and its driver after thorough investigation
19. No doubt, the P.W.1 in her cross-examination has
stated that, on 21.05.2013, she was proceeding from Bangalore to
Hassan in Government Jeep, since her husband had handed over
the entire charge of his office to Vijay Kumar, who is a
24 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
Commandant in KSRP before he retired and since her husband was
suffering from sugar decease and since she was in her daughter's
house at Bangalore and since in the Government Jeep, the said
Vijay Kumar was proceeding to Hassan, wherein, her residential
house is situated, on the date of accident, she was proceeding in
the said Government Jeep. She has further stated that, on that,
day 4 persons were traveling in the said Jeep and Raghu was
driving the said Jeep, at the time of accident. From the said
evidence of P.W.1, it appears that, at the time of accident, the
Petitioners in both the cases, who are the husband and wife were
traveling in the Government vehicle. But, the same no way affect to
consider the case of the Petitioners, as it is a specific case of both
the Petitioners that, the entire negligence is on the part of Tipper
Lorry bearing Registration No.CG-04-JB-3973 by its driver and not
on the driver of the said Jeep bearing Registration No.KA-13-G-662
and its driver, which is clear from the contents of material
documents produced by the Petitioners themselves. Further more,
the P.W.1 in her cross-examination has clearly stated that, Raghu
was driving the said Jeep about 30-35 kms per hour and her
husband lodged the complaint before the Police and Dr.Narayan
Hegde and Dr.Balakrishna Gowda treated her in the Apollo
Hospital. She has further clearly denied the suggestion put to her
about the negligence in driving of the Jeep by its driver, the
accident was taken place and she has not sustained any injuries in
the said road traffic accident.
20. Furthermore, to corroborate her oral version, the
Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint. Ex.P.3 Spot
25 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
Mahazar, Ex.P.4 Spot Hand Sketch, Ex.P.5 MVI Report,EX.P.6
Injury Certificate, Ex.P.7 Charge Sheet, Ex.P.8 Discharge Summary
3 in numbers, Ex.P.12 Lab Reports, Ex.P.24 Photographs 20 in
numbers, Ex.P.25 C.D. relating to Ex.P.24 Photographs and
Ex.P.26 Photo Receipt.
21. The Petitioner in M.V.C.No.5497/2013 has also
examined MRD Technician of Suguna Hospital as P.W.3, who has
produced Ex.P.28 Inpatient Record, Ex.P.29 Out Patient Record,
Ex.P.30 X-ray Films 3 in numbers. She has also examined the
Doctor as P.W.4 who has produced Ex.P.31 Inpatient Record and
Ex.P.35 X-ray Films 11 in numbers. On perusal of the contents of
the said material documents, it further clearly disclosed that, the
entire negligence is on the part of the driver of the offending Tipper
Lorry bearing Registration No.CG-04-JB-3973 and there was no
negligence on the part of the driver of Government Jeep bearing
Registration No.KA-13-G-662, in the said road traffic accident
which was taken place on 21.05.2013 at 8.00 p.m. More so, the
Petitioner in M.V.C.No.5498/2013, the husband of the Petitioner in
M.V.C.No.5498/2013, who is the P.W.2, has stated the same
evidence of P.W.1 in his examination-in-chief, which is clearly
corroborated with the evidence of P.W.1. Further, the P.W.2 has
also produced Ex.P.16 True copy of Injury Certificate, Ex.P.17
Discharge Summary, and Ex.P.20 Laboratory Report.
22. The Petitioner in M.V.C.No.5498/2013 has also
examined the P.W.5, who is working as M.R.D. Technician at Apollo
BGS Hospital, Mysore, who has produced Ex.P.40 Case Sheet and
Ex.P.41 CT Scan Films. The P.W.5 has also produced Ex.P.37 Case
26 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
Sheet, Ex.P.38 X-ray Films 8 in numbers and Ex.P.39 CT Scan
Films 4 in numbers relating to Petitioner in M.V.C.No.5497/2013.
The said medical and Police documents as well as their oral version
of P.W.1 and P.W.2 clearly disclosed about the very involvement of
offending Tipper Lorry bearing Registered No.CG-04-JB-3973 as
well as its driver in the said road traffic accident wherein, they had
sustained injuries, which is clear from the following discussion.
23. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly
disclosed that the Petitioner in M.V.C.No.5498/2013, who is the
husband of the Petitioner in M.V.C.No.5497/2013 lodged Ex.P.2
Complaint before the Channarayapatna as against the driver of
Tipper Lorry Bearing Registration No.CG-04-JB-3973 alleged that
on 21.05.2013 at 8.00 p.m., when he and his wife and Assistant
Officer Vijayakumar were proceeding in departmental Jeep from
Bangalore, on NH-48, B.M.road, in between Kodibelagola Gate near
Gowdagere, Channarayapatna Taluk, Bangalore-Mangalore road,
the driver of the said Jeep namely Raghunatha drove it in a very
slow and at that time a Tipper Lorry Bearing Registration No.CG-
04-JB-3973 came from opposite side in a rash and negligent
manner and dashed against their Jeep and both the vehicles
sustained damages and he had sustained injuries on his head and
Vijay Kumar had sustained grievous injuries on his head and his
wife Suvarna has sustained injuries on head, hands, legs and all
over the body and the driver Raghu had also sustained grievous
injuries on his head, hand and all over the body and an unknown
person had shifted them through Ambulance to Channarayapatna,
Nagesh Hospital and the driver Raghu was admitted in Government
27 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
Hospital and based on the said Ex.P.2 Complaint, the saidPolice
have registered a Criminal case as against the driver of Tipper Lorry
for the offences punishable under Section 279 and 337 of IPC and
Section 187 of I.M.V. Act under Crime No.204/2013. It is clear
from the contents of Ex.P.1 FIR and Ex.P.2 Complaint by the P.W.2
that, there is no delay as such in lodging the complaint by P.W.2.
24. The contents of Ex.P.3 Spot and Seizure Mahazar and
Ex.P.4 Spot Hand Sketch, Ex.P.5 IMV Report further clearly
disclosed that, both the said vehicles are involved in the said road
traffic accident, But,, the entire negligence in the said road traffic
accident is on the part of the driver of the offending Tipper Lorry
and not on the part of the driver of the departmental Jeep. It is also
clear from the contents of Ex.P.4 Spot Hand Sketch that, if the
driver of the Tipper Lorry would have been driven carefully the said
accident could have been avoided. The damages caused to both the
vehicles shown in MVI Report clearly disclosed about the terrific
impact of the road traffic accident. It is also clearly mentioned in
Ex.P.5 MVI Report that, the said accident was not occurred due to
any mechanical defects of the said vehicles.
25. The contents of Ex.P.6 Injury Certificate disclosed that,
in the said road traffic accident, the Petitioner in
M.V.C.No.5497/2013 had sustained severe head injury, multiple
facial bone fracture (Frontal bone, maxillary, zygomatic, nasal
bone, mandible, orbital bones were fracture), multiple facial
laceration, multiple long bone fracture, fracture of distal end left
radius, communited fracture distal, right femur, fracture proximal
right humerus, fracture both bones right forearm, hemorrhagic
28 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
shock, left III nerve injury, loss of tooth, rib fracture, metatarsal
and metacarpals bones, dislocation and also fractures and suffers
from several ligament tear and deep cut injuries, lacerations,
abrasion over the body. She has further stated that, immediately,
she was shifted to local Hospital, then, she was shifted to Apollo
B.G.S.Hospital, Mysore, she was admitted as an inpatient for more
than two weeks time in B.G.S Hospital and she took treatment from
21.05.2013 to 03.06.2013, i.e., 14 days. It is clearly mentioned in
Ex.P.6 Injury Certificate that, with a history of road traffic accident,
the Petitioner in M.V.C.No.5497/2013 was admitted in the said
Hospital to take treatment to the accidental injuries.
26. The contents of Ex.P.8 Discharge Summaries 3 in
numbers further clearly disclosed that, by admitting as an
inpatient from 21.05.2013 to 03.06.2013, i.e., for 14 days in B.G.S
Hospital, from 25.07.2013 to 05.08.2013 i.e., for 10 days in Spine
Care and Ortho Care Hospital and from 05.06.2014 to09.06.2014,
i.e., 5 days in Suguna Hospital, in all, the Petitioner took treatment
in the above said Hospitals for 36 days.
27. The contents of Ex.P.16 Injury Certificate relating to the
Petitioner in M.V.C.No.5498/2013 clearly disclosed that, in the
said road traffic accident, the Petitioner had sustained 3 simple
injuries and he took treatment to the said injuries in Apollo BGS
Hospital. It is also corroborated with Ex.P.17 Discharge Summary,
which clearly disclosed that, by admitting as an inpatient from
21.05.2013 to 22.05.2013, i.e., 2 days, he took treatment to the
said injuries as per Ex.P.16 Injury Certificate, the said Petitioner
had sustained abraded contusion on left frontal region, glazed
29 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
abrasion on the front of right knee joint, split laceration and
muscle deep in left temporal region in the road traffic accident.
28. The contents of Ex.P.12 Laboratory Report, Ex.P.24
Photographs 20 in numbers and Ex.P.25 C.D. relating to Ex.P.24
Photographs, clearly disclosed that, the Petitioner in
M.V.C.No.5497/2013 had sustained grievous injuries and by
admitting as an inpatient in the Hospital, she took treatment to
the said accidental injuries. The nature of injuries as well as the
line of treatment, are clear from the contents of the said material
documents.
29. The contents of Ex.P.7 Charge Sheet further clearly
disclosed that, since during the course of investigation, it is found
that, due to high speed, rash and negligent manner of driving of the
offending Tipper Lorry Bearing Registration No.CG-04-JB-3973 by
its driver, the said road traffic was taken place on 21.05.2013 at
8.00 p.m., wherein, the Petitioner in M.V.C.No.5497/2013 had
sustained grievous injuries and the Petitioner in
M.V.C.No.5498/2013 sustained simple injuries when they were
proceeding in their departmental Jeep bearing Registration No.KA-
13-G-662 in between Kodibelagola Gate near Gowdagera at
Bangalore-Mangalore Road, the Investigating Officer has filed a
charge sheet as against the driver of the offending Tipper Lorry
bearing Registration No.CG-04-JB-3973 for the offences punishable
under Section 279, 337 and 338 of IPC and Section 187 of IMV Act.
30. The head of collusion in between the said vehicles is not
proved by the Respondents. The Respondents have not adduced
30 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
any evidence on their behalf to consider their defence made as well
as the evidence adduced on their behalf. But, the material evidence
adduced by both the Petitioners clearly disclosed about the very
involvement of the offending Tipper Lorry bearing Registration
No.CG-04-JB-3973 as well as its driver in the said road traffic
accident, wherein, they had sustained grievous and simple injuries
respectively.
31. Under the above said facts and circumstances as well as
the reasons given, this Tribunal has come to the conclusion that,
the Petitioners in both cases by adducing acceptable material
evidence, both oral and documentary, have established that, the
accident has occurred due to rash and negligent driving of the
Tipper Lorry bearing Registration No.CG-04-JB-3973 by its driver
and in the said accident, the Petitioner in M.V.C.No.5497/2013
had sustained 8 grievous injuries and the Petitioner in
M.V.C.No.5498/2013 had sustained 3 simple injuries.
Accordingly, I answered Issue No.1 in both the cases in the
Affirmative.
32. ISSUE NO.2 IN BOTH CASE :-
IN M.V.C.No.5497/2013 :- The Petitioner has produced
Ex.P.13 Election Identity Card, Ex.P.14 Pan Card, Ex.P.15 Ration
Card relating to her, which clearly disclosed that, the date of
issuance of ration card is 16.04.2013. The date of accident is on
21.05.2013. From the said dates, it appears that, at the time of
accident, the Petitioner was 52 years old. Hence, the age of the
Petitioner is considered as 52 years at the time of accident.
31 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
33. The P.W.1 has stated that, earlier, she was doing
physical hard work and was doing house hold work and was also
dealing with Tupperware and Saree Business and was earning
Rupees 10,000/- per month. Admittedly, the Petitioner in
M.V.C.No.5497/2013 is the husband of the Petitioner. As this
Tribunal has already observed that, at the time of accident, the
Petitioner was 52 years old. No doubt, in the said accident, the
Petitioner has sustained grievous injuries. As a house wife due to
the said accidental injuries, the Petitioner could not definitely take
care about the welfare of the family by giving service to her family.
The Petitioner contributed her service for the benefit of her family.
To consider the same, this Tribunal feels that, in the absence of
material evidence, it is just, proper and necessary to consider the
notional income of the Petitioner at Rupees 4,500/- per month at
the time of accident. Therefore, the notional income of the
Petitioner is considered as Rupees 4,500/- per month at the time of
accident.
34. The P.W.1 has stated that, during the course of
treatment, she underwent for several medical, clinical examinations
and laboratory tests and X-rays were done and the Doctors were
treated her by conducting Tracheotomy, wound debridement,
elevation of depressed frontal bone, ACF repair using pericranial
graft and fibrin glue under G.A, ORIF maxilla, mandible, bilateral,
zygoma, frontal bone grafting, orbital floor repair, nasoehmoid
reconstruction, nasal soft tissue and facial wound respire, CRIF
with external fixator of distal end of left radius, ORIF with bridge
plating with condylar plating of communited fracture distal right
32 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
femur, ORIF with plate and screw of fracture, proximal right
humerus, ORIF with LCP and bone grafting for fracture both bones
right forearm and also she underwent for bone grafting, muscle
grafting, skin grafting blood transfusion and other surgeries were
done. She has further stated that, she is still suffering from social
phobia, facial disfigurement and severe pain, suffering from lots f
difficulties to mastication, chewing food, the same is leading to
multiple complication of indigestion, loss of weight, body weakness,
she cannot speak properly and still suffering from restriction of
movement in her jaw, she is suffering from depression, acute pain
in whole body, her left eye ball movement is restricted, she is
suffering from restricted angle of vision, she is suffering from
insomnia and anosmia (she cannot smell anything). She has
further stated that, she is suffering from limping, restriction of
movement in both upper and lower limbs movements, loss of
memory, repeated headache, running tears, loss of smell and
hearing, she cannot move her jaws, she cannot open her mouth to
even to small extent, she cannot move her neck, she lost the taste,
she has become dull, she is bed ridden. She has further stated
that, she cannot move from her bed independently, she is suffering
from unbearable pain and she is in deep mental agony. She has
further stated that, there is a swelling with gross deformity on his
entire body, her physical movement is completely restricted and
painful and due to the said accidental injuries she has become too
weak and cannot stand, squat, climb stairs, walk and cannot bear
weight on it and she cannot lift weight, fold twist, hold objects. She
has further stated that, she cannot do her normal work as she was
doing earlier and she was physically strong and hale and healthy
33 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
before the accident. She has further stated that, she cannot attend
her nature calls independently in normal toilet, she was advised to
go for some more operation in the near future days for set righting
her health disorder and also for required internal and external
fixation to recorrect the restrictions of movements and easy
movements and also removal of implants in near future days and
she on every day till day she is undergoing physiotherapy. She has
further stated that, she was advised by the Doctors for bed rest and
for regular follow-up treatment for 8 months continuously and now
the treatment is till going on. She has further stated that, she is
suffering mentally, physically and financially and she is not in a
position to mobilize the amount immediately. Hence they have
taken hand loans for higher interest per month as on now they are
incapable of reimbursing the loan amount borrowed by them. She
has further stated that, she was also bread earning member of her
family and has aged in-laws, husband and grand children who are
completely depended on her for their daily needs and the attendant
attending her as on now and she is not in a position to discharge
her day to day work independently and she was hale and healthy
and hard working before the accident and the nature of job in
which she was engaged it needs physical fitness.
35. The P.W.1 has further stated that, due to the said
accident and injuries sustained by her in the road traffic accident,
she has lost her future prospective life and has become disabled
and dependent, she has lost the charm, happiness the incident has
made her to suffer with unbearable pain, shock and mental agony
for ever and she has lost social and personal life, she is suffering
34 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
with loss of earnings, multiple complications due to impact of the
accident, she is suffering from multiple complication, changes in
health condition on each and every day.
36. The P.W.4, who has assessed the disability of the
Petitioner has stated that, in the said road traffic accident, the
Petitioner had sustained comminuted fracture bilateral frontal
maxilla, nasal zygomatic and left mandible bone, communited
fracture of distal shaft right femur, communited fracture radius
and ulna right fore arm, fracture of neck humurus right,
communited fracture distal radius left, fracture 1st, to 6th ribs left
with lung contusion, severe head injury, loss of tooth, hemorrhagic
shock and advised for follow-up treatment. He has further stated
that, recently he has examined the Petitioner on 29.10.2014 for
assessment of physical disability and she complaint of pain in the
head and face and mandible, frequent head ache, pain in both
limbs and both arms, difficulty to stand, sit, squat on the ground,
difficulty to stand on affected leg, inability to walk and walk on
uneven surfaces, inability to stand for long intervals, inability to
perform activities of daily routine activity, left eye vision problems
and hard hearing, inability to sit and stand independently,
difficulty in chewing food, pain in movement of neck. He has
further stated that, he has examined the Petitioner as per format
amended by the Ministry of Social Welfare and Empowerment-
Government of India Order No.16-18/97-NI.I and noted the
findings and assessed the disability as, X-ray shows all the fracture
united and implants in situ, right knee joint movement restricted
from 10-80 degree (fixed flexion deformity) can't possible to stand
35 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
on affected limb, calculated deformity as per guidelines 36%,
patellar movement grossly restricted, left wrist and hand
movements are grossly restricted, supination and pronation
movement of left forearm are restricted and she can't make fist with
left hand calculated deformity as per guidelines is 42%, ptosis of
left eye with disturbance in field of vision (expert opinion attached)
deformity as per guidelines 40%, multiple scars and disfigurements
of the face/permanent cosmetic deformative, large healed scar over
posterior aspect of right arm and anterior aspect of right shoulder.
He has further stated that, by considering all these physical
disability as per guidelines mentioned by Ministry of Social Welfare
and Empowerment-Government of India, she has permanent
disability of 43.8%. In this regard, the P.W.4 has produced Ex.P.31
Inpatient Record, Ex.P.32 Disability Certificate dated 29.10.2014,
Ex.P.33 OPD Slips 2 in numbers, Ex.P.34 Pure Tone Audiogram,
Ex.P.35 X-ray Films 11 in numbers.
37. No doubt, as per Ex.P.6 Injury Certificate, the Petitioner
had sustained 8 grievous injuries in the said road traffic accident
and as per Ex.P.8 Discharge Summary by admitting as an inpatient
for 31 days, she took treatment to the said accidental injuries in
B.G.S. Global Hospital, Spine Care Ortho and Suguna Hospitals.
She had also sustained head injury, multiple distal bone fracture,
long bone fracture, upper and lower limb fracture, distal end left
radius fracture, right fore arm fracture, nerve injury, loss of tooth,
multiple ribs fracture, metatarsal metacarpal bones dislocation in
the said road traffic accident.
36 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
38. But, based on the above said oral version of P.W.1 and
P.W.2, coupled with the contents of above said medical documents,
it cannot be believed and accept that, due to the said accidental
injuries, the Petitioner has suffered from permanent physical
disability of 43.8%, as at the time of accident, the Petitioner was 52
years old, and as already discussed above, she is a house wife and
she is not an earning member. Further more, the P.W.4 is not a
treated Doctor and same has been clearly admitted in the cross-
examination and he has not at all treated the Petitioner but, from
31.07.2013 to 05.08.2013 and he has only seen the discharge
summary. Further, he has not given treatment to the Petitioner for
head injury and the same has been clearly admitted by her in the
cross-examination. He has further clearly stated that, he has only
given treatment for fracture of shaft top right femur for which has
done reposition of implant and bone drafting and advised for
physiotherapy. Further. The Petitioner has not examined the
treated Doctor. He has further clearly admitted that, the Petitioner
is a house wife and she has no difficult to do her house hold work
excluding to the extent of 43.8% to the whole body. By considering
the nature of the injuries, line of treatment and age of the Petitioner
at the time of accident, this Tribunal feels that, it is just, proper
and necessary to consider the permanent physical disability of 25%
which is reasonable and acceptable one. Further more, due to the
said accidental injuries, she has disfiguration to her face.
Therefore, it can be safely held that, due to the accidental injuries,
the Petitioner has permanent disability of 25% Disability.
37 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
39. As this Tribunal has already observed that, the age of
the Petitioner was 52 years at the time of accident. The multiplier
corresponding to the said age as per Sarala Varma's case is 11.
Therefore, the loss arising out of the said 25% disability for
monthly income of Rupees 4,500/- by applying multiplier 11 comes
to Rupees 1,48,500/-, i.e., (Rs.4,500/- x 12 x 11 x 25%). Hence,
the Petitioner is entitled for a sum of Rupees 1,48,500/- towards
loss of future income arising out of 25% disability.
40. As the Petitioner had sustained 8 grievous injuries in
the said road traffic accident and by admitting as an inpatient for
31 days, she took treatment to the said accidental injuries, she
could have definitely suffered a lot of pain during the course of
treatment. Furthermore, at the time of accident, the Petitioner was
52 years old. By considering these aspects, this Tribunal feels that,
it is just, proper and necessary to award a sum of Rupees 50,000/-
towards pain and suffering.
41. As it is already observed that, the age of the Petitioner
was 52 years. Hence, the Petitioner has to lead remaining her
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.
42. The Petitioner had suffered 8 grievous injuries and she
was in the Hospital as an inpatient for 31 days and she could not
do any work at least for 6 months and thereby, she deprived the
income. Therefore, at the rate of Rupees 4,500/- per month, a sum
38 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
of Rupees 27,000/- (Rs.4,500/- x 6) is awarded towards loss of
income during the laid up period.
43. The P.W.1 has stated that, herself and her husband
have spent more than Rupees 20,00,000/- towards her medical
treatment expenses. But, the Petitioner has produced Ex.P.9
Medical Prescriptions 4 in numbers and Ex.P.10 Medical Bills 14 in
numbers, which is amounting to Rupees 8,81,031/-and Ex.P.11
Deposit Receipts 21 in numbers. Considering the nature of the
injuries and line of treatment given to the Petitioner, the possibility
of spending the said amount for the medicines cannot be doubted.
The amount covered under Ex.P.10 Medical Bills is not disputed by
the Respondents while cross-examining the P.W.1. Therefore, it is
necessary to award the said actual medical expenses of Rupees
8,81,031/- to the Petitioner.
44. The P.W.4 has stated that, he adviced the Petitioner for
implant removal, bone grafting, cosmetic deformity in the jaw/face
of depressed nose and laft orbital wall compression and skin
grafting and approximately cost of surgery would be Rupees
2,00,000/- . Hence, this Tribunal feels that, it is just, proper and
necessary to award a sum of Rupees 50,000/- towards future
medical expenses.
45. The P.W.1 has stated that, treatment is still going on
and she is getting expenses more than 2 to 3 thousand per day
even now and also she has spent towards conveyance, food and
nourishment charges and other for her incidental charges. it is
necessary to award a sum of Rupees 5,000/- towards conveyance
39 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
charges, Rupees 5,000/- towards attendant charges and Rupees
10,000/- towards food, nourishment and diet charges etc.
46. In this way, the Petitioner is entitled for the following
amount of compensation:-
Sl.
Compensation heads Compensation amount
No.
1. Loss of future income Rs. 1,48,500-00
arising out of 25% Disability
2. Pain and sufferings Rs. 50,000-00
3. Loss of amenities of life Rs. 20,000-00
4. Loss of income during laid Rs. 27,000-00
up period
5. Actual medical expenses Rs. 8,81,031-00
6. Future medical expenses Rs. 50,000-00
7. Conveyance Rs. 5,000-00
8. Attendant Charges Rs. 5,000-00
9. Food, Nourishment & Rs. 10,000-00
Diet charges
TOTAL Rs. 11,96,531-00
47. In all, the Petitioner in M.V.C.No.5497/2013 is entitled
for total compensation of Rupees 11,96,531/-with interest at the
rate of 6% per annum on the above said sum (excluding future
medical expenses of Rupees 50,000/-) from the date of Petition till
payment.
48. M.V.C.No.5498/2013 :- The P.W.2 has stated that, he
was admitted as an inpatient and underwent for several medical,
clinical examinations and laboratory tests and X-rays were done
and the Doctors were treated him conservatively, and he was
advised by the Doctors for a bed rest with regular follow-up
40 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
treatment for 6 months and has spent more than Rupees 20,000/-
amount towards medical expenses and also he has spent towards
conveyance, food and nourishment charges and other for his
incidental charges and he is still suffering from severe pain.
49. But, only based on the oral version of P.W.2, it cannot be
believed and accept that, due to the accidental injuries, the
Petitioner had sustained permanent physical disability, as, except
his oral version, the Petitioner has not examined the treated
Doctor. Even he has not produced the disability certificate issued
by the competent Doctor. Further, as per Ex.P.16 Injury Certificate
issued by Apollo B.G.S. Global Hospital Hospital, in the said road
traffic accident, the Petitioner sustained only 3 simple injuries and
per Ex.17 Discharge Summary by admitting as an inpatient from
21.05.2013 to 22.05.2013 i.e., 2 days, he took treatment to the
said simple injuries. More so, at the time of accident, the Petitioner
was 60 years old and he is a retired person. In view of the said
reasons, the Petitioner is not entitled for any compensation
towards loss of future earnings, loss of earning capacity, loss of
amenities of life, loss of income during laid up period.
50. However, in the said road traffic accident, the Petitioner
had sustained 3 simple injuries in the said road traffic accident as
per Ex.P.16 Injury Certificate and by admitting as an inpatient for
2 days, he took treatment to the said injuries. Further, at the time
of accident, the Petitioner was 60 years old. By considering the
same, this Tribunal feels that, it is just, proper and necessary to
award global compensation of Rupees 50,000/-, which is
41 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
reasonable, fair and acceptable one. Therefore, the Petitioner is
entitled for global compensation of Rupees 50,000/-.
51. The Petitioner has produced Ex.P.18 Medical Bills 2 in
numbers amounting to Rupees 15,574/-. Since, the Petitioner had
sustained three simple injuries and by admitting as an inpatient
for 2 days, he took treatment to the said injuries, the said amount
incurred by the Petitioner, cannot be doubted.
52. In all, the Petitioner is entitled for total global
compensation of Rupees 65,574/- (Rupees 50,000/- +
15,574). The Petitioner is also entitled for interest at the rate
of 6% per annum on the above said sum from the date of
Petition till payment.
53. While answering Issue No.1, this Tribunal has already
come to the conclusion that, the offending Tipper Lorry bearing
Registration No.CG-04-JB-3973 as well as its driver are very much
involved in the said road traffic accident, wherein, the Petitioner in
M.V.C.No.5497/2013 had sustained 8 grievous injuries and the
Petitioner in M.V.C. No.5498/2013 had sustained three simple
injuries. From the cause title of the petition, it appears that, the
Respondent No.1 is an owner and the Respondents No.2 and 3 are
the insurer of the offending Tipper Lorry at the time of accident.
Though the Respondents No.1 to 3 have appeared before this
Tribunal and they have filed the written statement to contest the
case of the Petitioners, they have not adduced any evidence on
their behalf. The Respondent No.2 has produced true copy of
42 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
Insurance Policy, which clearly disclosed that, at the time of
accident, offending Tipper Lorry was having a valid insurance
policy. Further, the Respondent No.1 has clearly stated in its
written statement that, the vehicle bearing Registration No.CG-04-
JB-3973 is duly insured with the Respondent No.2 covering the
period from 08.03.2013 to 07.03.2014 and the goods carriage
permit of the said Lorry, emission test certificate, driving licence
relating to the driver Sri. Wilbert. A., are valid at the time of
accident. From this, it is made crystal clear that, at the time of
accident, the Respondent No.1 was a registered owner and the
Respondent No.2 was an insurer of the said offending Tipper Lorry
at the time of accident. The Respondent No.3 is an Insurance
Company relating to the Respondent No.2. There is no allegation
leveled as against the driver of the said offending Tipper Lorry in
Ex.P.7 Charge Sheet that, at the time of accident, he was not
having a valid and effective driving licence to drive such class of
vehicle. There is no allegations and pleadings at all by both the
Petitioners as against the Respondent No.3. There is no allegation
leveled as against the driver of the Jeep, wherein, both the
Petitioners were traveling at the time of accident, as well as its
driver in Ex.P.7 Charge Sheet. The violation of the terms and
conditions of the admitted insurance policy is not proved by the
Respondents No.2 and 3. Under such circumstances, the
Respondent No.1 being a registered owner and the Respondent
No.2 is an insurer of the said offending Tipper Lorry, are jointly and
severally liable to pay the above said compensation and interest to
both the Petitioners. Hence, the petition filed by the Petitioners as
against the Respondents No.1 and 2 are liable to be allowed and
43 M.V.C.No.5497/13 c/w
M.V.C No.5498/13 (SCCH-7)
petition filed by the Petitioners as against the Respondent No.3 is
liable to be rejected. Hence, Issue No.2 in both the cases are
answered accordingly.
54. ISSUE NO.3 in both the cases :- For the aforesaid
reasons, I proceed to pass the following,
ORDER
The petition filed by the Petitioner in M.V.C.No.5497/2013 and M.V.C.No.5498/2013 under section 166 of the Motor Vehicles Act, 1989, are hereby partly allowed with costs as against the Respondents No.1 and 2.
The petition filed by the Petitioner in M.V.C.No.5497/2013 and M.V.C.No.5498/2013 under section 166 of the Motor Vehicles Act, 1989, are hereby rejected as against the Respondent No.3.
The Petitioner in M.V.C.No.5497/2013 is entitled for compensation of Rupees 11,96,531-/- with interest at the rate of 6% p.a. (excluding future medical expenses of Rupees 50,000/-) from the date of the petition till the date of payment, from the Respondent No.2.
The Petitioner in M.V.C.No.5498/2013 is entitled for compensation of Rupees 65,574/- with interest at the rate of 6% p.a. from the date of the petition, till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this order, in both the cases.
44 M.V.C.No.5497/13 c/wM.V.C No.5498/13 (SCCH-7) In the event of deposit of compensation and interest in M.V.C.No.5497/2013, 80% shall be released in the name of Petitioner through account payee cheque, on proper identification and remaining 20% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of her choice, for a period of 3 years.
In the event of deposit of compensation and interest in M.V.C.No.5498/2013, the entire deposited amount shall be released in favour of the Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/- in each case.
Original copy of the Judgment shall be kept in M.V.C.No.5497/2013 and the copy of the same shall be kept in M.V.C.No.5498/2013.
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 11th day of May, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : C.P.Suvarna 45 M.V.C.No.5497/13 c/w M.V.C No.5498/13 (SCCH-7) P.W.2 : K.Nagappa P.W.3 : Rajesh P.W.4 : K.Surendra Shetty P.W.5 : Durgesh
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Mahazar
Ex.P.4 : True copy of Spot hand sketch
Ex.P.5 : True copy MVI Report
Ex.P.6 : True copy Injury Certificate
Ex.P.7 : True copy Charge Sheet
Ex.P.8 : Discharge Summaries (3 in nos.)
Ex.P.9 : Medical Prescriptions (4 in nos.)
Ex.P.10 : Medical Bills (14 in nos.) Ex.P.11 : Deposition receipts (25 in nos) Ex.P.12 : Laboratory Report Ex.P.13 : Notarized xerox copy of Election Identity Card of Suvarna Ex.P.14 : Notarized xerox copy of PAN Card of Survarna .K. Ex.P.15 : Notarized xerox copy of Ration Card Ex.P.16 : True Copy of injury certificate Ex.P.17 : Discharge Summary Ex.P.18 : Medical bills (2 in nos) Ex.P.19 : Deposit Receipt Ex.P.20 : Laboratory Report Ex.P.21 : Notarized xerox copy of Driving Licence of K.Nagappa Ex.P.22 : Notarized xerox copy of Election Identity Card of Nagappa.K. Ex.P.23 : Notarized xerox copy of PAN Card of Nagappa .K. Ex.P.24 : Photographs ( 20 in nos) Ex.P.25 : C.D.relating to Ex.P.24 photographs Ex.P.26 : Photo receipt Ex.P.27 : Authorisation letter dated 30.10.2014 Ex.P.28 : Inpatient Record 46 M.V.C.No.5497/13 c/w M.V.C No.5498/13 (SCCH-7) Ex.P.29 : Out patient record Ex.P.30 : X-ray films with reports ( 3 in nos) Ex.P.31 : Inpatient Record Ex.P.32 : Disability certificate dated 29.10.2014 Ex.P.33 : OPD Slips ( 2 in nos) Ex.P.34 : Pure Tone Audiogram Ex.P.35 : X-ray films ( 11 in nos) Ex.P.36 : Authorisation letter dated 11.12.2014 Ex.P.37 : Case Sheet Ex.P.38 : X-ray films ( 8 in nos) Ex.P.39 : CT Scan films ( 4 in nos) Ex.P.40 : Case Sheet Ex.P.41 : CT Scan films ( 2 in nos)
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.