Bangalore District Court
Herself While She Was Standing On The Tar ... vs No.2 on 8 January, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 8th day of January, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.5357/2013
Smt.Savita, ..... PETITIONER
W/o Sri. Vinayaka Kulkarni,
Aged about 42 years,
Now residing at
No.118, 3rd Main,
3rd Block, 3rd Stage,
Basaveshwaranagar,
Bangalore-560 079.
(By Sri. G.S. Balagangadhar, Adv.,)
V/s
1.Sri.Rahulkumar, .....RESPONDENTS
S/o Sri.Shivakumar. S.,
Aged about 19 years.
(Driver of Honda Activa Scooter
bearing No.KA-02-HP-1135.
Involved in accident)
2. Sri.S.Shivakumar,
S/o Late R.Siddaiah,
Aged about 60 years.
(Owner of Honda Activa Scooter
bearing No.KA-02-HP 1135.
Involved in accident)
Both residing at No.337,
2 M.V.C.NO.5357/2013
(SCCH-7)
2nd Stage, 9th Cross,
2nd Block, KHB Colony,
Bangalore-560 079.
3. United India Insurance Company
Limited,
Krishi Bhavan, 6th Floor,
Hudson Circle,
Bangalore-560 002.
(Policy No.07050031120160028586)
(R1 and R2 - By Sri. Chandrashekar. C.,
Adv.,)
(R3 - By Sri. B. C. Shevanne Gowda,
Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 to 3 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 8,50,184/- with costs and damages.
2. The brief averments of the Petitioner's case are as follows;
a) She was going on the footpath along with her husband Sri.Vinayak Kulkarni on 30.04.2013 at 7.30 P.M., in front of Lakshmi Distributors, 7th Main, 3rd Block, 4th Stage, Basaveshwaranagar, Bangalore-560 079. At that time, the First Respondent Sri Rahulkumar rode his Honda Activa Scooter bearing Registration No.KA-02-HP-1135 in a rash and negligent manner and dashed against her and the driver, First Respondent fled away.
3 M.V.C.NO.5357/2013(SCCH-7)
b) Due to the accident, she fell down and she suffered head injuries and shoulder injuries, as per the Wound Certificate and because of which, she became unconscious. Immediately, her husband was admitted her nearby Panacea Hospital and first-aid treatment was given to her.
c) The accident was reported to the Kamakshipalya Police Station.
d) Hence, she seeks for compensation under the following heads for the injuries sustained by her;
1. Pain and suffering Rs. 3,00,000/-
2. Medical treatment Rs. 65,184/-
3. Attendants expenses Rs. 15,000/-
4. Nourishment expenses Rs. 20.000/-
5. Mental Agony/trauma Rs. 2,00,000/-
6. Future medical treatment Rs. 1,00,000/-
7. Loss of amenities Rs. 60,000/-
8. Loss of pay for the husband during treatment period Rs. 70,000/-
Total Rs. 8,50,184/-
e) She is a housewife and has to look after the family
and also the management of the house and has to take care of the 2 young children and to prepare food to the family members.
4 M.V.C.NO.5357/2013(SCCH-7) Because of the injuries sustained, she suffered mental agony and due to grievous injury, she was put to lot of inconveniences due to hospitalization, treatment, etc., She has to look after the aged parents-in-law and she has to manage the family and she has to take care of the children and every day, she was taking the children to schools and tuitions and guiding them to do homework and she was doing all household work. She is under treatment. Her elder son is studying in 10th standard and suffered a lot due to the accident.
f) The entire family, which was depending on her has suffered. The children were denied the motherly affection and guidance and her husband has to suffer because there was nobody to look after her family affairs the family. She is under treatment and taking treatment of physio-therapy. Due to the accident, her husband took 20 days leave with loss of payment of Rs.70,000/-.
g) With regard to the said accident, the Kamakshipalya Police Station have registered FIR in Crime No.65/2013 for the offences punishable under Section 134 (A & B), 187 of the Indian Motor Vehicles Act, 1988 and under Sections 279 and 337 of IPC as against the driver of the vehicle, i.e., First Respondent.
h) The Respondents are liable to pay the compensation for both the General and Special damages. She is entitled for compensation of Rupees 8,50,184/-. Hence, this petition.
3. Initially, though the notices were duly served on the Respondents No.1 and 2, they were remained absent and hence, they were placed as exparte on 27.11.2013. Later, the 5 M.V.C.NO.5357/2013 (SCCH-7) Respondents No.1 and 2 have appeared before this Tribunal through their Learned Counsel and as per the Order dated 15.03.2014 passed on I.A.No.II, the exparte order is set-aside and the Respondents No.1 and 2 are taken on file. But, inspite of giving sufficient opportunities, the Respondents No.1 and 2 have not filed the written statement.
4. Initially, though the notice was duly served on the Respondent No.3, it was remained absent and hence, it was placed as exparte on 27.11.2013. Later, the Respondent No.3 has appeared before this Tribunal through its Learned Counsel and as per the Order dated 17.12.2013 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.3 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.3 had not filed the written statement. Later, as per the Order dated 23.07.2014 passed on I.A.No.III, the written statement filed by the Respondent No.3 is taken on file.
5. The Respondent No.3 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition for grant of compensation on account of injury sustained in an accident that occurred on 30.04.2013 at 7.30 P.M., involving the Motor Cycle bearing Registration No.KA- 02-HP-1135 is not maintainable either in law or on facts.
b) It admits that, having insured the Motor Cycle bearing Registration No.Ka-02-HP-1135 is in terms of the policy of insurance issued, which is, in accordance with the provisions of the Motor Vehicles Act and the liability of it, is limited to the terms and conditions of the policy of insurance issued.
6 M.V.C.NO.5357/2013(SCCH-7)
c) The owner of the vehicle has not submitted the claim form and other documents, like, RC, Driving Licence for verification. Hence, it be permitted to file the additional written statement as and when the said requirements are submitted by the owner of the vehicle in question.
d) The Petitioner may be directed to confirm that, no other petition is filed before this MACT or before any other MACT, on the same cause of action. The Petitioner may be directed to undertaking to this Hon'ble Court that, no such petition is filed on the same cause of action, except this petition.
e) As per the provisions of the Motor Vehicle Act, it is the duty of the Police to inform the alleged accident to the concern jurisdictional Court and also to it, but, in order to help the Petitioner, to grab the public money in question, the Police have not complied the mandatory provision of the Motor Vehicles Act. It is the duty of the owner to inform the alleged accident to it as contemplated under the provisions of the Motor Vehicles Act, if it has issued the policy covering the said Lorry and thereby, insured has violated the provisions of the Act and therefore, it is not liable to pay any compensation.
f) The rider of the Motor Cycle ride the same without having a valid and effective driving licence and the owner of the Motor Cycle willfully entrusted the same, knowing fully well that, his son was not having valid driving licence to ride the Motor Cycle and hence, it is a clear violation of the policy terms and conditions and also the Motor Vehicles Act and Hence, it is not liable to pay any compensation.
7 M.V.C.NO.5357/2013(SCCH-7)
g) If the owner of the vehicle, i.e., the Second Respondent, not contesting the claim petition or if he is placed exparte before the Court or if he has colluded with the Petitioner, then, it be permitted to contest the matter on all the grounds available under Section 170 of the Motor Vehicles Act without prejudice to the grounds available under Section 149(2) of the M.V. Act.
h) The rider of the Motor Cycle ride the same in very slowly, by observing traffic rules and regulation and the unfortunate accident has occurred only on account of the Petitioner herself while she was standing on the tar road in a negligent manner, without observing the traffic rules and regulation and signal given by the rider of the Motor Cycle and hence, the Petitioner herself, solely responsible for this unfortunate accident and for the negligence of the Petitioner. Hence, the present petition is not maintainable.
i) As per the pleadings and also the Police documents, it is clear that, the accident was occurred due to negligent act on the part of the Petitioner herself, while she was walking on the road with observing the traffic rules and therefore, the Petitioner herself solely responsible for the accident and therefore, the petition is liable to be dismissed on that ground or at least contributory negligence on the part of the Petitioner to be considered based on the pleading of the Petitioner and Police documents.
j) The rider of the Motor Cycle ride the same without having valid and effective driving licence to ride the Motor Cycle 8 M.V.C.NO.5357/2013 (SCCH-7) and further owner of the Motor Cycle willfully entrusted the same knowing fully well that, his son was not having valid driving licence to ride the Motor Cycle and therefore, the Investigation Officer has filed the Charge Sheet as against the first Respondent under Section 3 read with Section 180 and 181 of the Motor Vehicles Act based on the reply given by the owner of the Motor Cycle to the 133 Notice issued by the Investigation Officer and hence, the same is in contravention of the policy terms and condition and also the Motor Vehicles Act.
k) A sum of Rupees 8,50,184/- claimed by Petitioner is highly excessive, arbitrary and disproportionate to the simple injury sustained by the Petitioner. The Petitioner is trying to make a windfall out of an unfortunate accident.
l) The Petitioner is not entitle to receive any interest on future loss of earnings and if the compensation is granted on any other heads, the rate of interest should not exceed more than 6% in view of the several recent decisions of our Hon'ble High Court of Karnataka. Hence, prayed to dismiss the petition with exemplary costs.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent riding of the Honda Activa Scooter bearing Reg.No.KA-
02-HP-1135 by its rider and in the
said accident, she sustained
injuries?
9 M.V.C.NO.5357/2013
(SCCH-7)
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
7. In order to prove her case, the Petitioner herself has been examined as P.W.1 and has also examined two witnesses as P.W.2 and P.W.3 by filing the affidavits as their examination-in- chief and has placed reliance upon Ex.P.1 to Ex.P.21. On the other hand, the Respondent No.3 has examined two witnesses as R.W.1 and R.W.2 and has placed reliance upon Ex.R.1 to Ex.R.3.
8. Heard the arguments.
9. In support of the submission, the Learned Counsel appearing for the Petitioner Sri. G.S. Balagangadhar has placed reliance upon the decisions reported in,
i) 2010 AIR SCW 5335 (Arun Kumar Agrawal and Another V/s National Insurance Company Ltd., and Others), wherein, it is observed that, (A) Motor Vehicles Act (59 of 1988), Ss.
168, 163A, Sch.2, Cl.6 - Accident -
Compensation - Victim housewife - Service rendered by housewife is invaluable -
Cannot be compared with service rendered by house-keeping/servant - Compensation to be paid by applying criteria in Cl.6 of Sch. 2 and applying appropriate multiplier. (Per Court) 10 M.V.C.NO.5357/2013 (SCCH-7)
ii) M.F.A. No.9308/2011 (MV) (United India Insurance Company Ltd., V/s Smt. Rathna and Another), wherein, it is observed that,
6. In the context of the contention raised, it is relevant to refer to the decision of the Supreme Court in Rukmani V/s New India Assurance Co. ((1998)9 SCC 160), wherein, the Supreme Court has stated as follows:
3. We have seen the only evidence which the Insurance Company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, P.W.1 who was the Inspector of Police, stated in his examination-in-chief "My enquiry revealed that, the Respondent No.1 did not produce the licence to drive the above said scooter.
The Respondent No.1 even after his demand did not submit the licence since he was not having it". In his cross-examination, he has said that, it simple injury the Inspector of Motor Vehicles who is required to check whether the licence is there but, he had not informed the Inspector of Motor Vehicles that, the Respondent No.1 was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under Section 96(2) (b)
(ii) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored. The appeal is allowed accordingly. No order as to costs.
11 M.V.C.NO.5357/2013(SCCH-7)
7. In the light of the decision of the Supreme Court extracted above and having regard to the fact that, there is no evidence on record to show that, the rider of the Insured Motor Cycle had no driving licence as on the date of accident, the contention of the applicant cannot be accepted. In my opinion, the Division Bench decision relied on by the appellant's counsel was rendered on its own facts and no law is laid down therein.
8. To hold that, the driver of the insured vehicle had no driving licence as on the date of accident, there must be clear evidence on the record of the case to that effect. Police Charge Sheet is no evidence to hold that, the driver of the insured vehicle had no driving licence as on the date of accident.
9. In view of the above, I find no legal infirmity in the judgment of the Tribunal to warrant interference. The appeal is devoid of merit and it is accordingly dismissed.
10. The amount lying in deposit with this Court shall be transferred to the Tribunal forthwith.
Appeal dismissed.
10. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 2,49,984/- with
12 M.V.C.NO.5357/2013
(SCCH-7)
interest at the rate of 6%
p.a. from the date of the
petition till the date of
payment, from the
Respondent No.2.
Issue No.3 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in her examination-in-chief that, she was going on the footpath along with her husband, Sri.Vinayak Kulkarni on 30.04.2013 at 7.30 P.M., in front of Lakshmi Distributors, 7th Main, 3rd Block, 4th Stage, Basaveshwaranagar, Bangalore-560 079 and at that time, the Respondent No.1 Sri Rahulkumar rode his Honda Activa Scooter bearing Registration No.KA-02-HP-1135 in a rash and negligent manner and dashed as against her and the driver, i.e., Respondent No.1 fled away. She has further stated that, due to the accident, she fell down and she suffered head injuries and shoulder injuries and because of which, she became unconscious and her husband was admitted her nearby Panacea Hospital and first-aid treatment was given to her. She has further stated that, the accident was reported to the Kamakshipalya Police Station and with regard to the said accident, the Kamakshipalya Police Station have registered FIR in Crime No.65/2013 for the offences punishable under Section 134 (A & B), 187 of the Indian Motor Vehicles Act, 1988 and under Sections 279 and 337 of IPC as against the driver of the vehicle, i.e., Respondent No.1.
13 M.V.C.NO.5357/2013(SCCH-7)
12. No doubt, the P.W.1 in her cross-examination has stated that, on the next day of the accident, she had lodged a complaint and she has no hurdle to produce the MLC Register. Further, the P.W.2, who is an Orthopedic Surgeon of Panacea Hospital, has stated in his cross-examination that, in their Hospital, they have been maintaining MLC Register, but, the MLC is not available in Ex.P.18 Case Sheet, which has been produced by him. Thereafter, the P.W.2 has produced Ex.P.21 Police Intimation dated 30.04.2014 and in this regard, he has stated in his cross-examination that, in Ex.P.21 Police Intimation, the vehicle number is mentioned as KA-02-HP-113. But, the offending vehicle is shown by the Petitioner in the petition is Honda Activa Scooter bearing Registration No.KA-02- HP-1135. Further, the P.W.3, who is a husband of the Petitioner, has stated in his cross-examination that, the Police have not recorded his statement about the accident.
13. But, based on the said evidence elicited from the mouth of P.W.1 and P.W.2 by the Respondent No.3 in their cross- examination and the discrepancy in mentioning the registration number of the offending vehicle in Ex.P.21 Police Intimation, it cannot be said and come to the conclusion that, there was no negligence on the part of the Respondent No.1, who is a son and also son of the Respondent No.2, in riding the offending Honda Activa Scooter bearing Registration No.KA-02-HP-1135 and the entire negligence is on the part of the Petitioner, as, to consider her case as well as her oral version, which has been stated by her in the examination-in-chief, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Wound Certificate, Ex.P.4 First Aid Medical document, Ex.P.5 Discharge Summary, Ex.P.6 X-ray 14 M.V.C.NO.5357/2013 (SCCH-7) Films and Scan Reports 2 in numbers, Ex.P.10 X-ray Films 2 in numbers, Ex.P.11 Order Sheet relating C.C.No.1050/2013, Ex.P.12 Charge Sheet, Ex.P.13 Spot Panchanama, Ex.P.14 MVI Report, Ex.P.15 Spot Hand Sketch, Ex.P.16 Reply issued to the Notice under Section 133 of M.V. Act, Ex.P.17 Notice under Section 133 of M.V. Act issued by Police to S.Shivakumar S/o Siddaiah, i.e., the Respondent No.2 and has also produced Ex.P.18 Case Sheet, Ex.P.19 X-ray Film with Report and Ex.P.20 Case Sheet through P.W.2, who is a treated Doctor and has also examined her husband as P.W.3, which clearly disclosed that, due to very high speed, rash and negligent manner of riding of the offending Honda Activa Scooter bearing Registration No.KA- 02-HP-1135 by its rider itself, i.e., Respondent No.1, who is son of the Respondent No.2, the said road traffic accident was taken place on 30.04.2013 at 7.30 p.m., in front of Laxmi Distributors, which dashed to the Petitioner, when she was going on footpath along with her husband Sri. Vinayak Kulkarni and due to the said impact, she fell down and sustained three grievous injuries and by admitting as an inpatient from 30.04.2013 to 10.05.2013, i.e., for 11 days, she took treatment to the accidental injuries at Panacea Hospital, which is clear from the following discussion. Furthermore, the P.W.1 in her cross-examination has clearly stated that, immediately after the accident, she took first-aid treatment in Aravinda Diabetic Centre and at that time, she was unconscious and her husband had shifted her to the Hospital and had informed to the Hospital Authority about the accident and the vehicle, which caused the accident and thereafter, she took treatment at Panacea Hospital by admitting as an inpatient for 10 days and she had sustained injuries in the said accident. Further, the P.W.2, who is a treated Doctor, has stated in his 15 M.V.C.NO.5357/2013 (SCCH-7) examination-in-chief that, on 30.04.2013 at around 10.24 p.m., he had examine the Petitioner. He has further clearly stated in his cross-examination that, on 30.04.2013, he has examined the Petitioner and she was admitted to the injuries alleged to have been sustained in the road traffic accident in between two wheeler and they have intimation to the Police on the same day itself. Further, the P.W.3, who is a husband of the Petitioner, has also stated the same evidence of P.W.1 in his examination-in- chief. He has further clearly stated in his cross-examination that, he has seen the accident and at the time of accident, he was accompanied with his wife and at the time of accident, the offending Motor Cycle was riding by Rahul Kumar, i.e., Respondent No.1 and after the accident, his wife was shifted to Arvind Diabetic Centre and thereafter, she was shifted to Panacea Hospital, wherein, she was admitted as an inpatient for 10 days. He has further clearly stated that, he and his wife were informed the said Hospital Authorities about the injuries sustained by his wife in the road traffic accident and he was present at the time of drawing the Spot Mahazar by the Police. Furthermore, both the P.W.1 and P.W.3 have clearly denied the suggestions put to them by the Respondent No.3 that, the alleged accident was taken place in the middle of the road and the height of the footpath is more than the road level and when he and his wife were hurriedly crossing the road, the alleged accident was taken place due to their own negligence and there was no negligence on the part of the rider of the offending Motor Cycle. From this, it appears that, though the P.W.1 to P.W.3 have been cross-examined by the Respondent No.3, nothing has been elicited from their mouth to consider its specific defence. Furthermore, the R.W.3, who is an Administrative Officer of the 16 M.V.C.NO.5357/2013 (SCCH-7) Respondent No.3, has not stated anything about the alleged act of riding of the offending Motor Cycle by the Respondent No.1 or the negligence act of the Petitioner in the commission of the said road traffic accident.
14. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the Petitioner herself has lodged Ex.P.2 Complaint before the Kamakshi Palya Traffic Police as against the rider of the Honda Activa Scooter bearing Registration No.KA-02-HP- 1135 by alleging that, on 30.04.2013 at about 7.30 P.M., when she and her husband were on the footpath, which is situated in front of Lakshmi Distributors, at that time, the Honda Activa Scooter bearing Registration No.KA-02-HP-1135 came from Southern side to Northern side, i.e., towards Basaveshwara Nagar Main Road, with very high speed, rash and negligent manner by its rider and dashed to her and due to the said impact, she fell down and sustained injuries on her head, back and as such, she prayed to take necessary legal action as against the rider of the Honda Activa and based on the said Ex.P.2 Complaint, the said Police have registered a criminal case as against the rider of the offending Honda Activa for the offences punishable under Section 279 and 337 of IPC, Section 134 (A & B) and Section 187 of IMV Act, 1988 under Crime No.65/2013. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such, in lodging Ex.P.2 Complaint by the Petitioner in respect of the said road traffic accident.
15. The contents of Ex.P.13 Spot Panchanama, Ex.P.14 MVI Report and Ex.P.15 Spot Hand Sketch further clearly 17 M.V.C.NO.5357/2013 (SCCH-7) disclosed that, the entire negligence is on the part of the Respondent No.1 in riding the offending Honda Activa Scooter bearing Registration No.KA-02-HP-1135 and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and at the time of accident, the Petitioner was standing by the edge of the footpath and the said offending Honda Activa came from right side to left side and dashed to the Petitioner. The damages caused to the offending Motor Cycle are clearly shown in Ex.P.14 MVI Report, which clearly disclosed about the terrific impact of the said accident. It is also clearly mentioned in Ex.P.14 MVI Report that, the said accident was not occurred due to any mechanical defects of the said offending Honda Activa.
16. The contents of Ex.P.3 Wound Certificate clearly disclosed that, the Petitioner was admitted in Panecea Hospital on 30.04.2013 at 10.30 p.m., reporting as certain injuries said to have been caused on 30.04.2013 at 7.30 p.m., due to road traffic accident, hit by two wheeler and on examination, it is found that, she had sustained fracture neck of glenoid left scapula, deep lacerated wounds over fronto parietal region 6-7 cm and occipital region 6-7 c.m, i.e., three grievous injuries.
17. The contents Ex.P.4 First Aid Medical Treatment issued by Dr. Aravind's Diabetes Centre further clearly disclosed that, with an alleged RTA, 10 minutes back, the Petitioner was shifted to the said Clinic for first-aid, conscious, oriented, responding with complaints of left shoulder pain severe and on examination, it is found that, cut laceration wound over left forehead measuring 5 x 2 cm, abrasion over left scapular area, 18 M.V.C.NO.5357/2013 (SCCH-7) lacerated wound over left flank and wound dressed, shifted to higher centre for further management.
18. The contents of Ex.P.5 Discharge Summary, Ex.P.6 X- ray Films and Scan Reports two in numbers, Ex.P.10 X-ray Films 2 in numbers, Ex.P.18 Case Sheet, Ex.P.19 X-ray Film with Report and Ex.P.20 Case Sheet further clearly disclosed that, by admitting as an inpatient from 30.04.2013 to 10.05.2013, i.e., for 11 days, the Petitioner took treatment to the said accidental injuries at Panecea Hospital. Further the P.W.2, who is a treated Doctor has clearly stated in his examination-in-chief that, on examination, the Petitioner had sustained injuries, i.e., infected deep lacerated wound - left front parietal region, infected wound
- left occipital region and she underwent surgery, i.e., wound debridement, soft tissue repair and suturing done on 07.05.2014 and fracture neck of Glenoid left treated conservatively and she was discharged on 10.05.2013. From this medical evidence, it clearly goes to show that, in the said road traffic accident, the Petitioner had sustained three grievous injuries.
19. The contents of Ex.P.16 Reply issued to notice under Section 133 of M.V. Act by the Respondent No.2 to the Police and Ex.P.17 Notice under Section 133 of M.V. Act issued by the Police to the Respondent No.2 clearly disclosed that, at the time of accident, the offending Honda Activa Scooter bearing Registration No.KA-02-HP-1135 was owned by the Respondent No.2 and was riding by his son, i.e., Respondent No.1.
20. The contents of Ex.P.12 Charge Sheet further clearly disclosed that, since during the course of investigation, it is 19 M.V.C.NO.5357/2013 (SCCH-7) found that, due to very high speed, rash and negligent manner of riding of the offending Honda Activa Scooter bearing Registration No.KA-02-HP-1135 by its rider, i.e., Respondent No.1, the road traffic accident was taken place on 30.04.2013 at about 7.30 P.M. on Basaveshwara Nagar 3rd Block, 4th Stage, 7th Main Road, which was proceeding from Southern side towards Northern side, i.e., towards Basaveshwaranagar Main Road and in front of House No.116, it dashed to the Petitioner, who was standing on the footpath and due to the said impact, she fell down and sustained grievous injuries and after the accident, the Respondent No.1 fled away from the accidental spot along with the Motor Cycle and at the time of accident, he was not having a valid and effective driving licence and the owner of the offending vehicle, i.e., Respondent No.2 had allowed his son to ride the said offending vehicle without having driving licence and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the Respondents No.1 and 2 for the offences punishable under Sections 279 and 338 of IPC and Section 134 (A&B), Section 187 and Sections 3(1), 180 and 181 of IMV Act, 1988. There is no allegation made by the Investigating Officer in Ex.P.12 Charge Sheet as against the Petitioner about her negligence in the commission of the said road traffic accident.
21. The contents of Ex.P.11 Order Sheet relating to C.C.No.1050/2013 further clearly disclosed that, based on the Ex.P.12 Charge Sheet, the said Criminal case is pending as against the Respondents No.1 and 2 in respect of the said road traffic accident.
20 M.V.C.NO.5357/2013(SCCH-7)
22. From the above said material evidence, both oral and documentary, it is clearly proved that, due to very high speed, rash and negligent manner of riding of the offending Honda Activa Scooter bearing Registration No.KA-02-HP-1135 by its rider itself, i.e., Respondent No.1, the said road traffic accident was taken place and in the said road traffic accident, the said offending Honda Activa as well as Respondent No.1 are very much involved, wherein, the Petitioner had sustained three grievous injuries. Accordingly, I answered Issue No.1 in the Affirmative.
23. ISSUE NO.2 :- The Petitioner has not produced any authenticated documents to consider her age at the time of accident. But, the above said Police and medical documents clearly disclosed that, at the time of accident, the Petitioner was 42 years old. Hence, the age of the Petitioner is considered as 42 years at the time of accident.
24. The P.W.1 has stated that, she is a housewife and she has to look after the family and also the management of the house and she has to take care of the two young children and prepare food to the family members. The P.W.3, who is the husband of the Petitioner, has stated the same evidence of P.W.1 in his examination-in-chief. The P.W.1 in her cross-examination has clearly stated that, at the time of accident, she was a house wife and at the time of accident, she was not doing any job. From this, it appears that, at the time of accident, the Petitioner was a house wife having husband and children and she has no independent income at all. As a housewife, the Petitioner had to look after her family and the management of the house and also 21 M.V.C.NO.5357/2013 (SCCH-7) to take care of her children. The Petitioner has produced Ex.P.8 Study Certificate dated 23.09.2013 relating to Anusha and Ex.P.9 Study Certificate relating to Achuth, which clearly disclosed that, the Petitioner had two children at the time of accident. As this Tribunal has already come to the conclusion that, at the time of accident, the Petitioner was 42 years old. Even though the Petitioner was not earning income at the time of accident, as a house wife, she had to dedicate her physical and mental strength to look after her husband and children and also to look after the welfare of the family and due to the said accidental injuries, she could not in a possession to do the said activities relating to her family. Therefore, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 6,000/- per month to consider her absence in looking after the family and its welfare and also maintenance from the date of accident till she recover from the accidental injuries. Hence, the notional income of the Petitioner is considered as Rupees 6,000/- per month at the time of accident.
25. The P.W.1 has stated that, because of the injuries sustained, she has suffered mental agony and due to grievous injury, she was put to lot of inconveniences due to Hospitalization, treatment, etc., and she has to look after the aged parent-in-law also and she has to manage the family and she has to take care of the children and every day, she was taking the children to schools and tuitions and guiding them to do homework and she was doing all household work and she is under treatment and her elder son is studying in 10th Standard and suffered a lot due to the accident to her. She has further stated that, the entire family, which was depending on her has 22 M.V.C.NO.5357/2013 (SCCH-7) suffered and the children were denied the motherly affection and guidance and her husband has to suffer because there was nobody to look after affairs of the family and she is under treatment and taking treatment of physiotherapy.
26. The P.W.2 has stated that, the Petitioner underwent surgery, i.e., wound debridement, soft tissue repair and suturing done on 07.05.2014 and fracture neck of Glenoid left treated conservatively and she was discharged on 10.05.2013. He has further stated that, on recently examination on 11.02.2015, she had complaints, i.e., pain and swelling over (L) shoulder, difficulty in lifting weight (L) hand, not able to through with (L) hand and difficulty in doing overhead activities. He has further stated that, on examination, it is found that, slinimal swelling and tenderness present over (L) shoulder, wasting of (L) shoulder present, movement of (L) shoulder - Abduction - 100 degree and rotation 60 degree and X-ray (L) shoulder - fracture whited. He has further stated that, in his opinion, she has 30% disability of (L) shoulder and 10% whole body. As this Tribunal has already observed about the production of the Ex.P.18 and Ex.P.20 Case Sheets, by the P.W.2.
27. No doubt, the P.W.2, who is a treated Doctor has stated in his cross-examination that, as per the CT Scan Report available in Ex.P.18 Case Sheet, no fracture in the skull. It is also clear from the contents of Ex.P.5 Discharge Summary that, during the course of treatment, no implants are inserted to the Petitioner to the said accidental injuries, but, only wound debridement, soft tissue repair and suturing done. Furthermore, at the time of accident, the Petitioner was a house wife. Further, 23 M.V.C.NO.5357/2013 (SCCH-7) the P.W.1 in her cross-examination has clearly stated that, she was not underwent any operation and she has only sustained injuries in the said accident and at the time of accident, she was not doing any job. Further, the P.W.3 has stated in his cross- examination that, now, his wife is doing house hold work. Further, the Petitioner has not produced the medical documents to show that, still she is taking physiotherapy treatment as per the advise of the treated Doctor. But, based on the said grounds, the oral version of P.W.1 and P.W.2, which has been stated by them in respect of the difficulties and disability arising out of the accidental injuries to the Petitioner and the contents of the above said material medical evidence, cannot be thrown away and it cannot be said and come to the conclusion that, due to the said accidental injuries, the Petitioner is not suffering from 10% disability to the whole body, as, based on Ex.P.3 Wound Certificate, Ex.P.5 Discharge Summary and Ex.P.18 and Ex.P.20 Case Sheets, this Tribunal has already come to the conclusion that, in the said road traffic accident, the Petitioner had sustained fracture neck of glenoid left scapula, deep lacerated wounds over fronto parietal region 6-7 cm and occipital region 6- 7 c.m., and by admitting as an inpatient from 30.04.2013 to 10.05.2013, i.e., for 11 days, she took treatment to the said accidental injuries at Panacea Hospital. It is also clearly mentioned in Ex.P.5 Discharge Summary that, wound debridement, soft tissue repair and suturing done under SA and she was evaluated further CT Scan done revealed soft tissue haematoma and she also had left shoulder injury, X-ray done revealed fracture glenoid neck and had ortho opine advised for shoulder immobilizer and on day 5 on regular dressing, found wound non healing with purulent discharge and Petitioner had 24 M.V.C.NO.5357/2013 (SCCH-7) intermittent fever spikes and hence, she was planned for re- exploration and wound debridement and post procedure she had change in IV antibiotics and hence, discharged with advise. It is also clearly mentioned in Ex.P.5 Discharge Summary that, review after 3 days for suture removal/SOS with prior appointment at Panacea Hospital. From this, it appears that, even after the discharge from the Hospital on 10.05.2012, the Petitioner had taken follow-up treatment as per the advise of the treated Doctors. Further, at the time of accident, the Petitioner was 42 years old and she was a house wife having husband, children and in-laws and she had sustained injuries, i.e., fracture neck of glenoid left scapula due to the accidental injuries, the Petitioner had definitely suffered the permanent physical and function disability to such extent. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 10% to the whole body, which is believable and acceptable one. Hence, the evidence of P.W.2 in respect of the disability is believed and accepts.
28. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 10%. This would certainly come in the way of the future life of the Petitioner and thereby, her income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 10%.
29. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 42 years at the time of 25 M.V.C.NO.5357/2013 (SCCH-7) accident. The multiplier corresponding to the said age as per Sarala Varma's case is 14.
30. As the Petitioner is suffering from permanent physical and functional disability of 10% to the whole body. The notional income of the Petitioner is already considered as Rupees 6,000/- per month. Therefore, the loss arising out of the said 10% disability for monthly income of Rupees 6,000/- by applying multiplier 14 would comes to Rupees 1,00,800/-, i.e., (Rs.6,000/- x 12 x 14 x 10%).
31. As per Ex.P.3 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained three grievous injuries. The Petitioner was in the Hospital as an inpatient from 30.04.2013 to 10.05.2013, i.e., for 11 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 50,000/- towards pain and suffering.
32. As it is already observed that, the age of the Petitioner was 42 years. She has to lead remaining her entire life with 10% 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 10,000/- towards loss of amenities of life to the Petitioner.
33. The Petitioner had sustained three grievous injuries and she was in the Hospital as inpatient for 11 days and she could not do any work at least for 3 months and thereby, she deprived the income. Therefore, at the rate of Rupees 6,000/- per 26 M.V.C.NO.5357/2013 (SCCH-7) month, a sum of Rupees 18,000/- is awarded towards loss of income during the laid up period.
34. The Petitioner has produced Ex.P.7 Medical Bills 14 in numbers including inpatient bill, which is amounting of Rupees 65,184/-. The Petitioner has taken treatment at Panacea Hospital, wherein, she was taken treatment as an inpatient from 30.04.2013 to 10.05.2013, i.e., for 11 days. 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. Therefore, it is necessary to award the said actual medical expenses of Rupees 64,184/- to the Petitioner.
35. Neither the Petitioner nor P.W.2 has stated anything about the future medical assistance and its expenses relating to the Petitioner in respect of the said accidental injuries. Hence, the Petitioner is not entitled for any compensation towards future medical expenses.
36. As the Petitioner was taken treatment as an inpatient for 11 days, it is necessary to award a sum of Rupees 2,000/- towards conveyance charges, Rupees 2,000/- towards attendant charges and Rupees 3,000/- towards food, nourishment and diet charges etc.,
37. The P.W.1 has stated that, due to the accident, her husband took 20 days leave with loss of payment Rupees 70,000/-. The P.W.3, who is the husband of the Petitioner has stated that, due to the accident of his wife, he took leave for 20 days and that was leave without pay. In this regard, the 27 M.V.C.NO.5357/2013 (SCCH-7) Petitioner has not produced any documents. Further, the P.W.3 in his cross-examination has stated that, he has not produced any documents to show that, he is working in TATA Company, which is a private Company and the loss sustained by him due to the accident caused to his wife. Furthermore, as the P.W.3 is a husband of the Petitioner, it is his duty to look after and take care of his wife. Hence, the Petitioner is not entitled for any compensation in respect of any loss of payment relating to her husband.
38. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. Rs. 1,00,800-00 arising out of 10% Disability
2. Pain and sufferings Rs. 50,000-00
3. Loss of amenities of life Rs. 10,000-00 Loss of income during laid
4. Rs. 18,000-00 up period
5. Actual medical expenses Rs. 64,184-00
6. Conveyance Rs. 2,000-00
7. Attendant Charges Rs. 2,000-00 Food, Nourishment &
8. Rs. 3,000-00 Diet charges TOTAL Rs. 2,49,984-00
39. In all, the Petitioner is entitled for total compensation of Rupees 2,49,984/- along with interest at the rate of 6% per annum on the above said sum from the date of petition till payment.
28 M.V.C.NO.5357/2013(SCCH-7)
40. The P.W.1 has stated that, the Respondents are liable to pay compensation for both the general and special damages.
41. While answering Issue No.1, this Tribunal has already come to the conclusion that, due to very high speed, rash and negligent manner of riding of the offending Honda Activa Scooter bearing Registration No.KA-02-HP-1135 by its rider itself, i.e., Respondent No.1, the said road traffic accident was taken place and in the said road traffic accident, the said offending Honda Activa as well as Respondent No.1 are very much involved, wherein, the Petitioner had sustained three grievous injuries. The Petitioner in the cause title of the petition has mentioned that, the Respondent No.1 is a rider, the Respondent No.2 is a R.C. Owner and the Respondent No.3 is an insurer of the offending Honda Activa Scooter bearing Registration No.KA-02-HP-1135 and its Policy No.07050031120160028586. The Respondent No.3 has clearly admitted in its written statement that, it is having insured the Motor Cycle bearing Registration No.KA-02-HP-1135 is in terms of the policy of insurance issued, which is in accordance with the provisions of the Motor Vehicles Act. The same has also been stated by the R.W.2, who is an Administrative Officer of the Respondent No.3, in her examination-in-chief. In this regard, the Respondent No.3 has also produced Ex.R.2 Insurance Policy. From the said material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was a rider and the Respondent No.2 was a registered owner and the Respondent No.3 was an insurer of the offending Honda Activa Scooter bearing Registration No.KA-02- HP-1135 and its Insurance Policy was valid, which covers the date of accident.
29 M.V.C.NO.5357/2013(SCCH-7)
42. But, based on the said material evidence, which is available on record, it cannot be said that, the Respondent No.2 being a registered owner and the Respondent No.3 being an insurer of the said offending Honda Activa Scooter bearing Registration No.KA-02-HP-1135 are jointly and severally liable to pay the above said compensation and interest to the Petitioner, as, it is clear from the contents of Ex.P.12 Charge Sheet that, the Respondent No.1, who was a rider of the said offending vehicle was not having a valid and effective driving licence to ride such class of offending vehicle at the time of accident and the Respondent No.2, who was a registered owner of the said offending vehicle has allowed his son, i.e., Respondent No.1 to ride the said offending Motor Cycle and as such, after th0rough investigation, the Investigation Officer has filed a Charge Sheet as against the Respondents No.1 and 2 for the offences punishable under Sections 3(1), 180, 181 of I.M.V. Act, 1988 along with Section 134 (A & B) and Section 187 of IMV Act and Section 279 and 338 of IPC. Further, the R.W.2 has clearly stated in her examination-in-chief that, the rider of the Motor Cycle ride the same without having a valid and effective driving licence, which is in contravention of the policy terms and conditions and also the Motor Vehicles Act and rules and the owner of the Motor Cycle willfully entrusted the same knowingfully well that, the rider was not having valid and effective driving licence to ride the insured Motor Cycle in question and therefore, on detailed investigation, the Investigation Officer has filed a charge sheet under Section 3(1), 180 and 181 of M.V. Act against the rider and owner of the Motor Cycle. Further, the Respondent No.3 has examined the ARTO, Rajajinaar, Bangalore as R.W.1, who by producing Ex.R.1 Extract of Driving Licence relating to 30 M.V.C.NO.5357/2013 (SCCH-7) Respondent No.1, has clearly stated in his examination-in-chief that, on 05.04.2014, the said Rahul Kumar.S. has obtained the said Ex.R.1 Driving Licence from their Office and before that, he had not obtained any driving licence from their Office. No doubt, the R.W.1 in his cross-examination has clearly stated that, he does not know that, whether Rahul Kumar. S. had Driving Licence before 05.04.2014 or not and after verifying Learners Licence, they have issued Ex.R.1 Driving Licence to Rahul Kumar.S. But, the Petitioner did not care to produce the driving licence relating to the Respondent No.1 to show that, at the time of accident, he was having a valid and effective driving licence to ride such class of offending vehicle. From this, it is made crystal clear that, at the time of accident, the Respondent No.1, who was a rider of the offending Honda Activa Scooter bearing Registration No.KA-02-HP-1135, was not having a valid and effective driving licence to ride such class of offending vehicle. From this, it is made crystal clear that, the Respondent No.2 being a R.C. Owner of the said offending Honda Activa Scooter has violated the terms and conditions of the admitted Ex.R.2 Insurance Policy. Hence, the Respondent No.3, who is an insurer of the offending Honda Activa is not at all liable to pay the above said compensation and interest to the Petitioner. Hence, the Respondent No.2 being the owner of the offending Honda Activa Scooter bearing Registration No.KA-02-HP-1135 is liable to pay the above said compensation and interest to the Petitioner. Since, the Respondent No.1 is a son of the Respondent No.2, who was a rider of the offending Honda Activa Scooter at the time of accident, he is also not liable to pay the above said compensation and interest to the Petitioner. Hence, the petition filed the Petitioner as against the Respondents No.1 and 3 are liable to be rejected and the petition 31 M.V.C.NO.5357/2013 (SCCH-7) filed by the Petitioner as against the Respondent No.2 is liable to be allowed. In view of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioner are applicable to the present facts and circumstances of the case on hand only to some extent. Hence, Issue No.2 is answered accordingly.
43. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondent No.2.
The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby rejected without costs as against the Respondents No.1 and 3.
The Petitioner is entitled for compensation of Rupees 2,49,984/- 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 32 M.V.C.NO.5357/2013 (SCCH-7) this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, entire amount shall be released in the name of the Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 8th day of January, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Smt.Savita
P.W.2 : Dr. Vasudeva. K.
P.W.3 : Sri Vinayaka Kulkarni
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Wound Certificate
Ex.P.4 : First Aid Medical Document
Ex.P.5 : Discharge Summary
33 M.V.C.NO.5357/2013
(SCCH-7)
Ex.P.6 : X-ray films and Scan Reports (2 in nos.)
Ex.P.7 : Medical Bills (14 in nos.) including
Inpatient Bill
Ex.P.8 : Study Certificate dated 23.09.2013 relating
to Anusha
Ex.P.9 : Study Certificate dated 23.09.2013 relating
to Achuth
Ex.P.10 : X-ray films (2 in nos.)
Ex.P.11 : Certified copy of Order Sheet relating to
C.C.No.1050/2013
Ex.P.12 : Certified copy of Charge Sheet
Ex.P.13 : Certified copy of Spot Panchanama
Ex.P.14 : Certified copy of MVI Report
Ex.P.15 : Certified copy of Spot Hand Sketch
Ex.P.16 : Certified copy of Reply issued to the Notice
under Section 133 of M.V. Act issued by
Shivakumar S/o R. Siddaiah
Ex.P.17 : Certified copy of Notice under Section 133
of M.V. Act issued by Police to S.
Shivakumar S/o Siddaiah
Ex.P.18 : Case Sheet (Only true copy of discharge
summary and Xerox copy of CT scan report
is available in case sheet)
Ex.P.19 : X-ray film with Report.
Ex.P.20 : Case Sheet
Ex.P.21 : True copy of Police Intimation dated
30.04.2014
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : C.Surendra
R.W.2 : Kusuma. K.
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Extract of Driving Licence relating to Rahul Kumar. S. Ex.R.2 : True Copy of Insurance Policy Ex.R.3 : Postal Acknowledgements (2 in nos.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.