Bangalore District Court
Does Not Arise vs Fails To Contest The Proceedings on 24 August, 2015
THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 24th day of August, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com., LL.B.(Spl.),LL.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.3437/2013
C/w. M.V.C.No.3438/2013
Lavanya, .....PETITIONER IN
D/o T. Srinivas, M.V.C.No.3437/2013
Aged about 22 years,
R/at No.1/28,
Chunchanaghatta,
Konanakunte Cross,
Sharadanagar,
Kanakapura Main Road,
Bangalore - 560 062.
Previous Address.
No.2-303 /1-285,
Puliyan Thoppu Street,
Arakkonam Taluk,
Vellur District.
(By Smt.Shoba. G., Adv.,)
V/s
1. National Insurance Company Ltd., .....RESPONDENTS IN
Division - III, 15-17-19, M.V.C.No.3437/2013
Shri Lakshmi Complex,
St. Marks Road,
SCCH-7 2 MVC.No.3437 & 3438/2013
Bangalore - 560 001.
(Insurer of the Car bearing Registration
No.KA-51-D-6688)
(Policy No.60220031126165005183,
Valid from 19.03.2013 to 18.03.2014)
2. Ravi. B.,
No.183, 1st 'F' Cross,
3rd Stage, 4th Block,
Basaveshwaranagar,
Bangalore.
(Owner of the Car bearing Registration
No.KA-51-D-6688)
((R-1 By Sri. S.S.Pandit, Adv.,)
(R-2 Exparte)
.....PETITIONER IN
Vinay.T M.V.C.No.3438/2013
S/o Thimmappa C.M.,
Age 31 years, R.at No.1/28,
Chunchanagatta,
Konanakunte Cross,
Sharadanagar,
Kanakapura Main Road,
Bangalore - 560 062.
(By Smt.Shobha. G. Adv.,)
V/s
1. National Insurance Company Ltd.,
Division - III, 15-17-19, .....RESPONDENTS IN
Shri Lakshmi Complex, M.V.C.No.3438/2013
St. Marks Road,
Bangalore - 560 001.
SCCH-7 3 MVC.No.3437 & 3438/2013
(Insurer of the Car bearing Registration
No.KA-51-D-6688)
(Policy No.60220031126165005183,
Valid from 19.03.2013 to 18.03.2014)
2. Ravi.B,
No.183, 1st 'F' Cross,
3rd Stage, 4th Block,
Basaveshwaranagar,
Bangalore.
(Owner of the Car bearing Registration
No.KA-51-D-6688)
(R-1 By Sri. S.S.Pandit, Adv.,)
(R-2 Exparte)
COMMON JUDGMENT
As per the Order dated 19.12.2013 passed on Memo in
M.V.C.No.3437/2013, M.V.C.No.3438/2013 is clubbed with the
said M.V.C.No.3437/2013 and the common evidence is recorded
in the said case. Hence, M.V.C.No.3437/2010 and
M.V.C.No.3438/2013 are pending for consideration and disposal
before this Tribunal by passing a common judgment.
2. The Petitioner in M.V.C.No.3438/2013 has filed the
said petition as against the Respondents No.1 and 2 under Section
166 of the Motor Vehicles Act, 1989 praying to award
compensation of Rupees 10,00,000/- with interest and costs.
SCCH-7 4 MVC.No.3437 & 3438/2013
3. The brief averments of the Petitioner's case in M.V.C.
No.3437/2013 are as follows;
a) On 04.06.2013 at about 9.20 a.m., she was traveling
with her brother in a Car bearing Registration No.KA-05-MG-7047
from Banneraghatta Road to Electronic City on NICE Road, near
Begur Lake, Vittasandra Under Pass, at that time, a Car bearing
Registration No.KA-51-P-688 came on the same direction with
rash and negligent manner, in a high speed, endangering to
human life, without observing any traffic rules and regulations
and dashed against left side of her vehicle from behind, in which
she had sustained grievous injuries.
b) Immediately after the accident, she was shifted to
Sparsh Hospital, wherein, she took treatment as an inpatient for
about 9 days and discharged. She has spent more than Rupees
2,00,000/- towards medical, conveyance, nourishment and other
incidental charges etc.,
c) The accident occurred due to the rash and negligent
driving of the driver of the Car bearing Registration No.KA-51-P-
6688. The Electronic City Traffic Police have registered a Criminal
case in Crime No.109/2013 under Sections 279 and 337 of IPC.
Hence, this Petition.
4. In response to the notice, the Respondent No.1 has
appeared before this Tribunal through its Learned Counsel. But,
initially, inspite of giving sufficient opportunities, the Respondent
SCCH-7 5 MVC.No.3437 & 3438/2013
No.1 had not filed the written statement. Later, as per the Order
dated 23.10.2013 passed on I.A.No.I, the written statement filed
by the Respondent No.1 is taken on file.
5. Though the notice was duly served on the Respondent
No.2, he was remained absent and hence, he is placed as exparte
on 05.08.2013.
6. The Respondent No.1 inter-alia denying the entire case
of the Petitioner in M.V.C.No.3437/2013, has further contended
as follows;
a) Issuance of the policy will be brought to the notice of
this Hon'ble Court after verifying their records. Without prejudice,
the question of coverage of liability to the Petitioner by
indemnifying the 2nd Respondent does not arise at all.
b) The Petitioner has not made the owner and insurer of
the T.P. vehicle Car bearing registration No.KA-05-MG-7047,
which is stated to be involved in the alleged accident as per the
complaint/FIR. Hence, the claim petition be dismissed for non-
joinder of necessary parties.
c) The injuries are not due to any accidental injuries
involving the vehicle Car bearing Registration No.KA-51-P-6688 in
question. Only in order to make use of the insurance coverage and
vehicular documents if any of the said Car, a story of road traffic
accident has been fabricated and accordingly, prosecution records
have been created to suit the needs of the claim petition.
SCCH-7 6 MVC.No.3437 & 3438/2013
d) The complaint lodged against the Car Registration
bearing No.KA-51-P-6688 is an afterthought to narrate a story of
RTA even though same is not involved. The driver of the Car
bearing No.KA-05-MG-7047, in which, the Petitioner was
travelling is alone responsible and tort feasor for the
consequences. Neither the second Respondent/owner of the Car
Registration bearing No.KA-51-P-6688 mentioned in the petition
intimated about the occurrence of the accident to it nor the
jurisdictional Police Authorities have intimated it about the
occurrence of the accident as per M.V. Act under Section 156(6).
The Statute made it mandatory to provide the accident details to
the insurer under Section 158(6) and 134(c) of the M.V. Act, if at
all, the vehicle in question was involved in an accident and any
policy was in existence at the time of the alleged accident. Lapse
on these aspects attracts the dismissal of the petition against it as
per the ruling of the Supreme Court in its judgment in AIR SCW
4873 2007 between General Insurance Council and Other V/s
State of Andhra Pradesh and Others.
e) As it does not admit the very occurrence of the
accident, the question of paying the compensation to the
Petitioner does not arise.
f) The owner of the Car Registration bearing No.KA-51-P-
6688 has not intimated it that, his vehicle is insured with it and
met with an accident as alleged in the petition and not submitted
the required documents, such as, copy of the policy, R.C., F.C.
and particulars of the D.L. to establish that, the vehicle is insured
SCCH-7 7 MVC.No.3437 & 3438/2013
with it having valid documents and effective documents and is
road worthy to ply. Further, the said vehicle was driven by a driver
having valid and effective DL to drive that very class of vehicle.
Hence, it is not liable to indemnify the second Respondent even if
he furnishes the policy and other vehicular documents as he has
not complied with the mandatory provisions of M.V. Act casted
upon the owners of the vehicles by M.V. Act.
g) The petition is not maintainable for non-joinder of
necessary party as the owner and insurer of the TP vehicle Car
Registration No.KA-05-MG-7047. On this score also claim petition
is not maintainable. The brother of the claimant himself is
responsible as he claims to be driving the said TP Car at the
relevant point of time. Further, as per the spot sketch, the TP Car
was at fault and responsible for the alleged accident. As per I.M.V.
Report, damages are noted mainly on the front portion of both the
Cars. This alone goes to show that, the offending Car is not
responsible and hit/dashed the TP Car.
h) Without prejudice to the contents raised, if the
owner/second Respondent fails to produce the documents like,
R.C., F.C., D.L. and Insurance Policy and if the owner/second
Respondent fails to contest the proceedings, then, it would submit
that, the owner/second respondent is colluding with the Petitioner
and as such, it seeks leave of this Hon'ble Court to file additional
written statement if an and contest the case on all grounds
available to the owner/second Respondent and the application
under Section 170 of M.V. Act is deemed to be surviving on its
SCCH-7 8 MVC.No.3437 & 3438/2013
behalf including grounds of defence provided to the insurance
Company in the M.V. Act by the Statute along with the defences
available under Section 149 and its Sub-Sections.
i) The amount of compensation of Rupees 10,00,000/-
claimed is imaginary, exorbitant and speculative. The Petitioner
has made a vague claim without any basis and heads of income,
which are required to be proved point by point. If at all, the
Petitioner is entitle for any compensation, the same may be
fastened on the second Respondent/owner of the Car and also on
the TP vehicle Accent Car as they are not coming forward to tell
about the accident, if any and produce the required documents as
stated above.
j) It seeks leave of this Hon'ble Court to defend the
claim/case as per Applicable decisions of Hon'ble High Court/
Supreme Court and on all other grounds, which may be urged at
the time of arguments also with additional grounds of defence on
the basis of the facts found subsequently to the filing of this
written statement and even after completion of trial of the claim
petition also. Hence, prayed to dismiss the claim petition.
7. The Petitioner in M.V.C.No.3438/2013 has filed the
said petition as against the Respondents No.1 and 2 under Section
166 of the Motor Vehicles Act, 1989 praying to award
compensation of Rupees 15,00,000/- with interest and costs.
SCCH-7 9 MVC.No.3437 & 3438/2013
8. The brief averments of the Petitioner's case in M.V.C.
No.3438/2013 are as follows;
a) On 04.06.2013 at about 9.20 a.m., he was driving his
Car bearing Registration No.KA-05-MG-7047 from Banneraghatta
Road to Electronic City on NICE Road, near Begur Lake,
Vittasandra Under Pass, at that time, a Car bearing Registration
No.KA-51-P-6688 came on the same direction with rash and
negligent manner, in a high speed, endangering to human life,
without observing any traffic rules and regulations and dashed
against left side of his vehicle from behind, in which, he had
sustained grievous injuries.
b) Immediately after the accident, he was shifted to
Sparsh Hospital, wherein, he took treatment as an inpatient for
about 9 days and discharged on 12.06.2013. He has spent more
than Rupees 1,50,000/- towards medical, conveyance,
nourishment and other incidental charges etc.,
c) The accident occurred due to the rash and negligent
driving of the driver of the Car bearing Registration No.KA-51-P-
6688. The Electronic City Traffic Police have registered a Criminal
case in Crime No.109/2013 under Sections 279 and 337 of IPC.
Hence, this Petition.
9. In response to the notice, the Respondent No.1 has
appeared before this Tribunal through its Learned Counsel. But,
initially, inspite of giving sufficient opportunities, the Respondent
SCCH-7 10 MVC.No.3437 & 3438/2013
No.1 had not filed the written statement. Later, as per the Order
dated 23.10.2013 passed on I.A.No.I, the written statement filed
by the Respondent No.1 is taken on file.
10. Though the notice was duly served on the Respondent
No.2, he was remained absent and hence, he is placed as exparte
on 05.08.2013.
11. The Respondent No.1 inter-alia denying the entire case
of the Petitioner in M.V.C.No.3437/2013, has further contended
as follows;
a) Issuance of the policy will be brought to the notice of
this Hon'ble Court after verifying their records. Without prejudice,
the question of coverage of liability to the Petitioner by
indemnifying the 2nd Respondent does not arise at all.
b) The Petitioner has not made the owner and insurer of
the T.P. vehicle Car bearing registration No.KA-05-MG-7047,
which is stated to be involved in the alleged accident as per the
complaint/FIR. Hence, the claim petition be dismissed for non-
joinder of necessary parties.
c) The injuries are not due to any accidental injuries
involving the vehicle Car bearing Registration No.KA-51-P-6688 in
question. Only in order to make use of the insurance coverage and
vehicular documents if any of the said Car, a story of road traffic
accident has been fabricated and accordingly, prosecution records
have been created to suit the needs of the claim petition.
SCCH-7 11 MVC.No.3437 & 3438/2013
d) The complaint lodged against the Car Registration
bearing No.KA-51-P-6688 is an afterthought to narrate a story of
RTA even though same is not involved. The driver of the Car
bearing No.KA-05-MG-7047, in which, the Petitioner was
travelling is alone responsible and tort feasor for the
consequences. Neither the second Respondent/owner of the Car
Registration bearing No.KA-51-P-6688 mentioned in the petition
intimated about the occurrence of the accident to it nor the
jurisdictional Police Authorities have intimated it about the
occurrence of the accident as per M.V. Act under Section 156(6).
The Statute made it mandatory to provide the accident details to
the insurer under Section 158(6) and 134(c) of the M.V. Act, if at
all, the vehicle in question was involved in an accident and any
policy was in existence at the time of the alleged accident. Lapse
on these aspects attracts the dismissal of the petition against it as
per the ruling of the Supreme Court in its judgment in AIR SCW
4873 2007 between General Insurance Council and Other V/s
State of Andhra Pradesh and Others.
e) As it does not admit the very occurrence of the
accident, the question of paying the compensation to the
Petitioner does not arise.
f) The owner of the Car Registration bearing No.KA-51-P-
6688 has not intimated it that, his vehicle is insured with it and
met with an accident as alleged in the petition and not submitted
the required documents, such as, copy of the policy, R.C., F.C.
and particulars of the D.L. to establish that, the vehicle is insured
SCCH-7 12 MVC.No.3437 & 3438/2013
with it having valid documents and effective documents and is
road worthy to ply. Further, the said vehicle was driven by a driver
having valid and effective DL to drive that very class of vehicle.
Hence, it is not liable to indemnify the second Respondent even if
he furnishes the policy and other vehicular documents as he has
not complied with the mandatory provisions of M.V. Act casted
upon the owners of the vehicles by M.V. Act.
g) The petition is not maintainable for non-joinder of
necessary party as the owner and insurer of the TP vehicle Car
Registration No.KA-05-MG-7047. On this score also claim petition
is not maintainable. The brother of the claimant himself is
responsible as he claims to be driving the said TP Car at the
relevant point of time. Further, as per the spot sketch, the TP Car
was at fault and responsible for the alleged accident. As per I.M.V.
Report, damages are noted mainly on the front portion of both the
Cars. This alone goes to show that, the offending Car is not
responsible and hit/dashed the TP Car.
h) Without prejudice to the contents raised, if the
owner/second Respondent fails to produce the documents like,
R.C., F.C., D.L. and Insurance Policy and if the owner/second
Respondent fails to contest the proceedings, then, it would submit
that, the owner/second respondent is colluding with the Petitioner
and as such, it seeks leave of this Hon'ble Court to file additional
written statement if an and contest the case on all grounds
available to the owner/second Respondent and the application
under Section 170 of M.V. Act is deemed to be surviving on its
SCCH-7 13 MVC.No.3437 & 3438/2013
behalf including grounds of defence provided to the insurance
Company in the M.V. Act by the Statute along with the defences
available under Section 149 and its Sub-Sections.
i) The amount of compensation of Rupees 15,00,000/-
claimed is imaginary, exorbitant and speculative. The Petitioner
has made a vague claim without any basis and heads of income,
which are required to be proved point by point. If at all, the
Petitioner is entitle for any compensation, the same may be
fastened on the second Respondent/owner of the Car and also on
the TP vehicle Accent Car as they are not coming forward to tell
about the accident, if any and produce the required documents as
stated above.
j) It seeks leave of this Hon'ble Court to defend the
claim/case as per Applicable decisions of Hon'ble High Court/
Supreme Court and on all other grounds, which may be urged at
the time of arguments also with additional grounds of defence on
the basis of the facts found subsequently to the filing of this
written statement and even after completion of trial of the claim
petition also. Hence, prayed to dismiss the claim petition.
12. Based on the above said pleadings, my Learned
Predecessor-in-Office has framed the following Issues;
SCCH-7 14 MVC.No.3437 & 3438/2013
ISSUES
In M.V.C.No.3437/2013
1. Whether the Petitioner proves that,
the accident occurred due to rash
and negligent driving of the Car
bearing Registration No.KA-51-P-
6688 by its driver and in the said
accident, the Petitioner sustained
injuries?
2. Whether the Petitioner is entitled for
compensation? If so, how much and
from whom?
3. What Order?
ISSUES
In M.V.C.No.3438/2013
1. Whether the Petitioner proves that,
the accident occurred due to rash
and negligent driving of the Car
bearing Registration No.KA-51-P-
6688 by its driver and in the said
accident, the Petitioner sustained
injuries?
2. Whether the Petitioner is entitled for
compensation? If so, how much and
from whom?
3. What Order?
13. In order to prove their case, the Petitioner in
M.V.C.No.3437/2013 herself has been examined as P.W.1 and has
SCCH-7 15 MVC.No.3437 & 3438/2013
also examined two witness as P.W.3 and P.W.5 by filing the
affidavits as their examination-in-chief and has placed reliance
upon Ex.P.1 to Ex.P.13, Ex.P.25, Ex.P.26 and Ex.P.29 Ex.P.38
and the Petitioner in M.V.C.No.3438/2013 himself has been
examined as P.W.2 and has also examined one witness as P.W.4
by filing the affidavits as their examination-in-chief and has
placed reliance upon Ex.P.14 to Ex.P.24, Ex.P.27 and Ex.P.28. On
the other hand, the Respondent No.1 has examined its
Administrative Officer as R.W.1 and has also examined the driver
as R.W.2 and has placed reliance upon Ex.R.1 and Ex.R.2. The
Respondent No.1 has also produced the true copy of Insurance
Policy.
14. Heard the arguments.
15. My answers to the above said Issues are as follows;
M.V.C.No.3437/2013
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 6,78,985/- with
interest at the rate of 6%
p.a. from the date of the
petition till the date of
payment, from the
Respondent No.1.
SCCH-7 16 MVC.No.3437 & 3438/2013
Issue No.3 : As per the final Order,
M.V.C.No.3438/2013
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 1,94,639/-
with interest at the rate
of 6% p.a. from the date
of the petition till the
date of payment, from
the Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
16. ISSUE NO.1 IN BOTH THE CASES :- The P.W.1, who
is the Petitioner No.1 in M.V.C.No.3437/2013 has stated in his
examination-in-chief that, on 04.06.2013 at about 9.20 a.m., he
was traveling in a Car bearing Registration No.KA-05-MG-7047
from Bannerugatta Road to Electronic City on NICE Road, near
Begur Lake Vittasandra Under Pass, a Car bearing Registration
No.KA-51-P-6688 came from behind, i.e., from the same direction
with rash and negligent manner, in a high speed, endangering to
human life, without observing any traffic rules and regulations
dashed against the left side of her Car from behind. She has
further stated that, due to this accident, she sustained grievous
SCCH-7 17 MVC.No.3437 & 3438/2013
injuries, i.e., right femur mid shaft fracture and right knee
abrasion, left side forehead and temporal region lacerations, left
eye lid laceration involving the lateral aspect of upper and lower
eyelid and other injuries all over the body. She has further stated
that, immediately after the accident, she was shifted to Sparsh
Hospital, wherein, she was treated as an inpatient from
04.06.2013 to 12.06.2013. She has further stated that, the said
accident occurred solely due to the rash and negligent driving of
the driver of Car bearing Registration No.KA-51-P-6688 and the
Electronic City Traffic Police have registered a criminal case in
Crime No.109/2013, under Sections 279 and 337 of IPC.
17. The P.W.2, who is the Petitioner in
M.V.C.No.3438/2013, has also stated the same evidence of P.W.1,
in his examination-in-chief. He has further stated that, due to this
accident, he sustained grievous injuries, i.e., cut lacerated wound
over right cheek, fracture clavicle right, fracture of D5 (Flexion
distraction injury-unstable) and other injuries all over the body.
He has further stated that, immediately after the accident, he was
shifted to Sparsh Hospital, wherein, he was treated as an
inpatient, from 04.06.2013 to 12.06.2013.
18. No doubt, the P.W.1 in her cross-examination has
admitted that, there are two lanes in the said road for movement
of two vehicles at a time. She has further stated that, as the
offending Car hit from their back side, she cannot say, in which
lane, the said Car came and after 4 days from the date of the
accident, her statement is recorded by the Police. She has further
SCCH-7 18 MVC.No.3437 & 3438/2013
stated that, the class of vehicle is not mentioned in Ex.P.38.
Further the P.W.2 in his cross-examination has also clearly
admitted that, there was two lanes on Mysore Road and no other
vehicle was proceeding at that time on right side lane and that
lane was clear and he was proceeding in 50 -60 kilo meters per
hour and that, if a moving Car is hit by another Car from behind,
there is no possibility of turtle. He has further stated that, he has
not given complaint to the Police. The R.W.1, who is the
Administrative Officer of the Respondent No.1 Insurance Company
has stated in his examination-in-chief that, after the alleged
accident, the owner of the insured Car bearing Registration
No.KA-51-P-6688 has submitted the claim form, in which, the
narration of the accident is mentioned in detail and as per the
said document, the driver of the TP Car, who is the Petitioner in
M.V.C.No.3438/2013 is the tort feasor for the consequences. He
has further stated that, the driver of the offending Car has given
statement before the Notary about the description of the alleged
accident and in the said statement, it is clearly shown that, the
driver of the TP Car, who is the Petitioner in M.V.C.No.3438/2013,
while over taking the offending Car in a rash and negligent
manner caused the accident and hence, the negligence of the
Petitioner in M.V.C.No.3438/2013 has to be consider and the
claim against it in both the cases has to be dismissed. The
Respondent No.1 has produced Ex.R.1 Letter dated 24.07.2013
and Ex.R.2 Claim Form in support of the oral evidence of R.W.1.
The Respondent No.1 has also examined the driver of the
offending Car bearing Registration No.KA-51-P-6688 as R.W.2,
who has stated in his examination-in-chief that, he was the driver
SCCH-7 19 MVC.No.3437 & 3438/2013
of the Car bearing Registration No.KA-51-P-6688 at the time of
accident on 04.06.2013 at about 9.20 a.m. and the T.P. Car
bearing Registration No.KA-05-MG-7047 was driven by the driver
in a rash and negligent manner and over took his Car at NICE
Road and he himself caused the accident. He has further stated
that, he has not committed any offence of rash and negligent
manner as stated in the Complaint/FIR.
19. But, based on the above said oral version of P.W.1 and
P.W.2,which is elicited from their mouth by the Respondent No.1
and the contents of Ex.R.1 and Ex.R.2 as well as the oral version
of R.W.1 and R.W.2, it cannot be believed and accept the defence
taken by the Respondent No.1 that, there was no negligence on
the part of the R.W.2, who was a driver of the offending Car
bearing Registration No.KA-51-OP-6688, but, the entire negligence
is on the part of the Petitioner in M.V.C.No.3438/2013, who was
driving his Car bearing Registration No.KA-05-MG-7047 at the
time of accident, as, to consider her case, the Petitioner in
M.V.C.No.3437/25013 has produced Ex.P.1 FIR, Ex.P.2 Charge
Sheet, Ex.P.3 Hand Sketch, Ex.P.4 Panchanama, Ex.P.5 Wound
Certificate, Ex.P.6 Discharge Summary and Ex.P.10 X-ray films 5
in numbers and to consider his case, the Petitioner in
M.V.C.No.3438/2013 has produced Ex.P.14 Wound Certificate,
Ex.P.15 Discharge Summary and Ex.P.22 X-ray films 3 in
numbers, which clearly disclosed that, the entire negligence is on
the part of the driver of the offending Car bearing Registration
No.KA-51-P-6688 by its driver, i.e., the R.W.2, who came from
behind of the Car bearing Registration No.KA-05-MG-7047,
SCCH-7 20 MVC.No.3437 & 3438/2013
wherein, both the Petitioners were proceeding and the R.W.2 was
driving the offending Car with a high speed, rash and negligent
manner and dashed to the said Car on its behind, i.e., left side
and due to which, the Petitioner in M.V.C.No.3437/2013 has
sustained 2 grievous injuries and one simple injury and the
Petitioner in M.V.C.No.3438/2013 had sustained 3 grievous
injuries and by admitting as an inpatient from 04.06.2013 to
12.06.2013 i.e., for 9 days, both of them had taken treatment to
the said accidental injuries in Sparsh Hospital, which is very
much clear from the following discussion. Furthermore, the P.W.1
in her cross-examination has clearly stated that, as on the date of
accident, both of them were proceeding in the Car and she was
sitting in front left side and she was observing the movements of
the vehicle and on the left side lane, the vehicle was proceeding.
She has further clearly stated that, the Police have recorded her
statement at Hospital on some other day and she has stated
before the Police that, the Car bearing Registration No.KA-51-P-
6688 has caused the accident. She has further clearly stated that,
Vinay was driving the Car, in which, she was proceeding. She has
further denied the suggestion put to her by the Respondent No.1
that, their Car was over taking the offending Car from left side and
therefore, the accident occurred and this accident occurred due to
the negligent driving of Car by Vinay, i.e., the Petitioner in
M.V.C.No.3438/2013. Further, the P.W.2 has also clearly stated
in his cross-examination that, at the time of accident, he was
driving the Car and he was proceeding on the left lane and the
offending Car dashed their Car from back side and the offending
Car had an opportunity on the right side lane and it was clear. He
SCCH-7 21 MVC.No.3437 & 3438/2013
has further stated that, as he had lost conscious, he does not
know, who were on the spot when the accident was occurred. He
has also clearly denied the suggestion put to him by the
Respondent No.1 that, the offending Car was proceeding on the
right side lane and he tried to overtake the said Car from left side
and caused the accident to the said Car by dashing it and he has
not given complaint to the Police, as, he had lost conscious and
does not know, who were at the spot when the accident was
occurred. From this, it is made crystal clear that, though the
P.W.1 and P.W.2 have been cross-examined by the Respondent
No.1, nothing has been elicited from their mouth to consider its
defence. Further, Ex.R.1 and Ex.R.2 are not a conclusive proof.
Furthermore, the R.W.1 in his cross-examination has stated that,
based on the Police documents and insured documents, he has
given evidence in the present case and he knows about the
contents of Police documents. He has further clearly admitted
that, after investigation, the Police have filed a charge sheet as
against the driver of the said offending Car and as per Ex.P.3 Spot
Sketch, the Car bearing Registration No.KA-51-P-6688 was
proceeding on the left side of the road and on the right side of the
offending Car, the Car bearing Registration No.KA-05-MG-7047
was proceeding. He has further clearly stated that, the contents of
Ex.P.3 Spot Hand Sketch are corroborated with the contents of the
Police documents. He has shown his ignorance that, whether the
driver of the Car has challenged the charge sheet. He has further
stated that, he has no knowledge about the criminal case relating
to the alleged accident. More so, the R.W.2, who is a driver of the
offending Car bearing Registration No.KA-51-P-6688, in his
SCCH-7 22 MVC.No.3437 & 3438/2013
examination-in-chief itself has clearly stated that, he has pleaded
guilty and paid fine only to release his vehicle bearing Registration
No.KA-51-P-6688. From the said evidence of R.W.2, it clearly goes
to show that, the R.W.2, who was a driver of the offending Car
bearing Registration No.KA-51-P-6688 has pleaded guilty in the
criminal case, which is relating to the present road traffic accident
and has paid fine amount to the concerned Court. Though it is
stated by the R.W.2 that, he has pleaded guilty and paid fine only
to release his vehicle bearing Registration No.KA-51-P-6688, it
cannot be taken in to for consideration, as, the offending Car
bearing Registration No.KA-51-P-6688, which was very much
involved in the said road traffic accident is not belonging to the
Respondent No.1, but, it was belonging to the Respondent No.2.
Therefore, the say of R.W.1 that, only to release the offending Car,
he has pleaded guilty and paid fine, is discarded. If really, there
was no negligence on the part of the R.W.1 in committing the said
road traffic accident, he could not pleaded guilty and paid fine in
the relating criminal case and he could have definitely contested
the said criminal case. The R.W.2 has further clearly stated in his
cross-examination that, the Police had registered a criminal case
as against him and also filed a charge sheet before the Criminal
Court. He has further clearly admitted that, the Car bearing
Registration No.KA-05-MG-7047 was proceeding in front of his
Car. From the said evidence of R.W.2, it clearly goes to show that,
there was no negligence on the part of the Petitioner in
M.V.C.No.3438/2013 in driving his Car bearing Registration
No.KA-05-MG-7047, but, the entire negligence is on the part of
R.W.2, who was a driver of the Car bearing Registration No.KA-51-
SCCH-7 23 MVC.No.3437 & 3438/2013
P-6688 at the time of accident and due to his high speed, rash
and negligent manner of driving of the said offending Car, he
dashed to the said Car bearing Registration No.KA-05-MG-7047
on its behind, i.e., left side, wherein, the Petitioners were traveling
at the time of accident.
20. The contents of Ex.P.1 FIR clearly disclosed that,
Sri.Y.H.Chandrashekar S/o Late Honnegowda, who was an eye
witness of the said road traffic accident, has lodged a complaint
before the Electronic City Traffic Police as against the driver of the
offending Car bearing Registration No.KA-51-P-6688 by alleging
that, on 04.06.2013 at 9.20. a.m., the driver of the Car bearing
Registration No.KA-51-P-6688 was driven by its driver with high
speed, rash and negligent manner through NICE Road, Electronic
City and near Under Pass Bridge, near Begur Lake, Vittasandra
and dashed on the hind portion of the Car bearing Registration
No.KA-05-MG-7047, which was proceeding in front of the said Car
and both the Cars turned turtle and caused damages and the
inmates of the Car bearing Registration No.KA-05-MG-7047 had
sustained injuries and they were shifted to Sparsh Hospital for
treatment near NICE Road and the cause of the said accident is
the driver of the Car bearing Registration No.KA-51-P-6688 and
hence, he prayed to take necessary legal action as against him
and based on the said complaint, the said Police have registered a
criminal case as against the driver of the offending Car bearing
Registration No.KA-51-P-6688 for the offences punishable under
Section 279 and 337 of IPC in Crime No.109/2013. It is also clear
SCCH-7 24 MVC.No.3437 & 3438/2013
from the contents of Ex.P.1 FIR that, there is no delay as such in
lodging the said complaint.
21. The contents of Ex.P.3 Hand Sketch and Ex.P.4
Panchanama clearly disclosed that, the offending Car bearing
Registration No.KA-51-P-6688 as well as its driver, i.e., R.W.2, are
very much involved in the said road traffic accident, who dashed
to the Car bearing Registration No.KA-05-MG-7047 on its behind
and the entire negligence is on the part of the driver of the said
offending Car, i.e., R.W.2 and there was no negligence on the part
of the driver of the Car bearing Registration No.KA-05-MG-7047
i.e., Petitioner in M.V.C.No.3438/2013.
22. The contents of Ex.P.5 Wound Certificate disclosed
that, the Petitioner in M.V.C.No.3437/2013 was admitted in
Sparsh Hospital to take treatment to the injuries, which said to
have been caused on 04.06.2013 due to the accident and on
examination, it is found that, he has sustained injuries, i.e.,
fracture right femur and knee abrasion, left side fore head and
temporal laceration, laceration of left eye lid, i.e., two grievous
injuries and one simple injury. From the contents of Ex.P.5
Wound Certificate, it clearly goes to show that, in the said road
traffic accident, the Petitioner in M.V.C.No.3437/2013 had
sustained two grievous injuries and one simple injury in the said
road traffic accident.
23. The contents of Ex.P.6 Discharge Summary and
Ex.P.10 X-ray film 5 in numbers further clearly disclosed that, by
SCCH-7 25 MVC.No.3437 & 3438/2013
admitting as an inpatient from 04.06.2013 to 12.06.2013 at
Sparsh Hospital, the Petitioner in M.V.C.No.3437/2013 had taken
treatment to the said accident injuries. It is also clearly mentioned
in Ex.P.6 Discharge Summary that, on final diagnosis, it is found
that, right femur mid shaft fracture and right knee abrasion, left
side forehead and temporal region lacerations, left eye lid
laceration involving the lateral aspect of upper and lower eye lid.
24. The contents of Ex.P.14 Wound Certificate clearly
disclosed that, the Petitioner in M.V.C.No.3438/2013 was
admitted in Sparsh Hospital to take treatment to the injuries,
which said to have been caused on 04.06.2013 due to the accident
and on examination, it is found that, he had sustained cut
lacerated wound over the cheek, fracture of right clavicle, fracture
of D5 spine, which are grievous in nature. It is clear from the
contents of Ex.P.14 Wound Certificate that, in the said road traffic
accident, the Petitioner in M.V.C.No.3438/2013 had sustained 3
grievous injuries.
25. The contents of Ex.P.15 Discharge Summary and
Ex.P.22 X-ray film 3 in numbers further clearly disclosed that, it
is finally diagnosed that, in the road traffic accident, the Petitioner
had sustained cut lacerated wound over right cheek, fracture
clavicle right, fracture Discharge Summary (flexion Distraction
injury-unstable) with no neurological deficit and by admitting as
an inpatient from 04.06.20213 to 12.06.2013 i.e., for 9 days, the
Petitioner in M.V.,C.No.3438/2013 had taken treatment at Sparsh
Hospital to the said accidental injuries.
SCCH-7 26 MVC.No.3437 & 3438/2013
26. The contents of Ex.P.2 Charge Sheet further clearly
disclosed that, since during the course of investigation, it is found
that, due to very high speed, rash and negligent manner of
driving of the offending Car bearing Registration No.KA-51-P-6688
by its driver, i.e., R.W.2 himself, the said road traffic accident was
taken place on 04.06.2013 at 9.20 a.m., which dashed the Car
bearing Registration No.KA-05-MG-7047, wherein, both the
Petitioners were proceeding, which was driven by the Petitioner in
M.V.C.No.3438/2013 and the said accident was taken place near
Under Pass Vittasandra, Begur Lake and due to the said impact,
both the Cars turtle and had sustained damages and also caused
damages to side ramp and cement slab of NICE Road and both the
Petitioners have sustained grievous injuries in the said road traffic
accident and as such, after thorough investigation, the
Investigating Officer had filed a charge sheet as against the R.W.2
for the offences punishable under Section 279 and 338 of IPC .
27. From the above said material evidence, both oral and
documentary, it is made crystal clear that, in the said road traffic
accident, the offending Car bearing Registration No.KA-51-P-6688
as well as its driver, i.e., R.W.2 are very much involved in the said
road traffic accident, which caused due to his high speed, rash
and negligent manner of driving of the offending Car, wherein, the
Petitioner in M.V.C.No.3437/2013 had sustained 2 grievous
injuries and one simple injury and the Petitioner in
M.V.C.No.3438/2013 had sustained 3 grievous injuries. The same
has been clearly proved by the Petitioners of both the cases.
SCCH-7 27 MVC.No.3437 & 3438/2013
Accordingly, I answered Issue No.1 in both the cases in the
Affirmative.
28. ISSUE NO.2 in BOTH THE CASES :-
IN M.V.C.No. 3437/2013 :- The P.W.1 has stated that, at
the time of accident, she was aged about 22 years. The
Petitioner has produced Ex.P.11 Voter's Identity Card, Ex.P.12
Dependant Army Card and Ex.P.13 HSC Certificate relating to
her, which clearly disclosed that, the date of birth of the
Petitioner is 19.08.1991. The date of accident is 04.06.2013.
From the said dates, it clearly goes to show that, at the time of
accident, the Petitioner was 22 years old. Hence, the age of the
Petitioner is considered as 22 years at the time of accident.
29. The P.W.1 has stated that, she was earning Rupees
20,000/- per month by working as a permanent employee and
her designation was Customer Care Executive at Jubliant Motor
Works Pvt. Ltd., Chennai. In this regard, the Petitioner has
produced Ex.P.7 Statement of Bank Account, Ex.P.34 Letter
dated 20.12.2012 with annexure and Ex.P.35 Letter dated
01.07.2013. The Petitioner has also examined the Manager,
Special Project in Audi, Chennai as P.W.5, who has produced
Ex.P.29 Appointment Letter dated 10.01.2013, Ex.P.30 Salary
break up relating to Lavanya T.S, Ex.P.31 Pay Slips for the
month of January 2013 to June 2013 relating to Lavanya T.S. 6
in numbers, Ex.P.32 Copy of E.mail Letter dated 13.08.2015
issued by Lavanya Srinivas, Ex.P.33 Reliving Letter dated
SCCH-7 28 MVC.No.3437 & 3438/2013
13.08.2014. He has further stated in his cross-examination
that, the said Company is a private limited Company and the
original Ex.P.29 Appointment Letter was issued to Lavanya, i.e.,
the Petitioner and she was appointed in their Company through
reference and after 6 months probation period, they have issued
a confirmation letter to the Petitioner. He has further stated
that, in their Company only punching machine is maintained
for the attendance of the employees and they have paid the
salary to the Petitioner through Bank. But, based on the said
oral version of P.W.1 and P.W.2 coupled with the contents of
Ex.P.7 and Ex.P.29 to Ex.P.35, it cannot be believed and accept
that, the Petitioner was earning Rupees 20,000/- per month at
the time of accident, as, the said documents do not disclosed
that, she was earning Rupees 20,000/- per month by doing the
said job. Further, the entries made in Ex.P.7 Statement of Bank
Account relating to the Petitioner clearly disclosed that, her last
salary for the month of May 2013 is Rupees 18,481/-.
Furthermore, the Petitioner and the P.W.5 have not produced
pay slips for the month of May 2013, which is the last salary
drawn by the Petitioner from the said Company. However, it is
clear from the said material evidence that, at the time of
accident, the Petitioner was working as a permanent employee
in Customer Care Executive at Jubliant Motor Works Pvt. Ltd.,
Chennai. Based on the same, this Tribunal has considered that,
at the time of accident, the Petitioner was working as a
permanent employee by getting salary of Rupees 18,481/- per
month. Hence, the income of the Petitioner is considered as
Rupees 18,481/- per month at the time of accident.
SCCH-7 29 MVC.No.3437 & 3438/2013
30. The P.W.1 has stated that, she was treated as an
inpatient at Sparsh Hospital and during that period, she was
operated for right femur on 05.06.2013 and implants were fixed
to her right leg and discharged from the Hospital after taking
treatment for about 8 days, i.e., on 12.06.2013 with advise for
follow-up treatment.
31. As this Tribunal has already observed based on the
contents of Ex.P.5 Wound Certificate and Ex.P.6 Discharge
Summary that, in the said road traffic accident, the Petitioner
had sustained 2 grievous injuries and one simple injury and by
admitting as an inpatient from 04.06.2013 to 12.06.2013, i.e.,
for 9 days at Sparsh Hospital, she took treatment to the said
accidental injuries. It is clearly mentioned in Ex.P.6 Discharge
Summary that, during the course of treatment, right femur IML
nailing intramedullary (9 X 420 mm) and knee wound
debridement was done on 05.06.2013, eye lid repair with lateral
local flap. No doubt, the Petitioner has not produced any
medical documents to show that, after discharge, she had taken
follow-up treatment as per the advise of the Doctor. But, it no
way affect to consider the case of the Petitioner, since during
the course of treatment, the Petitioner was operated for his right
femur on 05.06.2013 and implants are inserted to her right leg,
she very much required the follow-up treatment to the said
injury even after discharge from the Hospital. Therefore, the
evidence of P.W.1 in respect of follow-up treatment taken is
believed and accepts.
SCCH-7 30 MVC.No.3437 & 3438/2013
32. The P.W.1 has stated that, inspite of best and
continuous treatment, she has become totally disabled and she
is suffering from disabilities, i.e., she cannot sit for few minutes
also, there is a severe pain and her right leg has become fully
disabled and she cannot walk for short distance also, there is a
severe pain and swelling in her right leg and she cannot fold her
right leg, the movements of her right leg is restricted, she
cannot bear any weight on her right leg and if she tries to walk
for few steps also her leg gets swollen and get infected. She
cannot claim stairs, cannot squat on ground and she is facing
difficulty in using India type of toilets and hence her right leg
has become totally disabled, disfigured and useless. She has
further stated that, now she has become disabled to do any
work from the date of accident till now and she is not able to go
to work and she has become bed ridden due to this accidental
injury her life has become dark and miserable.
33. The Petitioner has also examined the Doctor as
P.W.3, who has stated the nature of injuries sustained by the
Petitioner in the road traffic accident, treatment taken by her to
the said accidental injuries in their Hospital from 04.06.2013 to
12.06.2013 as well as the advise of OPD follow- up treatment.
He has further stated that, the Petitioner has complained of
pain and hence, had a second opinion in Chennai and she
underwent exchange nailing anti rotation plating and bone
grafting on 25.09.2014 at MIOT Chennai and now she
complains of pain in the right hip and knee, weakness of right
lower limb, limping gait, unable to sit cross leg and squat. He
SCCH-7 31 MVC.No.3437 & 3438/2013
has further stated that, the Petitioner was examined clinically
and assessment of disability was done as per the Central
Government Notification. He has further stated that, her latest
X-ray shows fracture is union in progress with implants in situ.
By considering the mobility component, stability component
and additional points in respect of assessment of disability of
lower limb, range of movements relating to hip, knee, ankle and
muscle power relating to hip knee and ankle and by giving
detailed assessment of their function and sensation of the said
organs, the P.W.3 has opined that, total physical disability of
right lower limb relating to the Petitioner is 56%. The P.W.3 has
also produced Ex.P.25 Case Sheet and Ex.P.26 X-ray Film. As
this Tribunal has already observed about the production of
Ex.P.36 Discharge Summary by the Petitioner to show the
treatment taken by her in Chennai Hospital, after giving her
earlier evidence.
34. But, based on the above said oral version of P.W.1
and P.W.3 coupled with the contents of Ex.P.5 Wound
Certificate, Ex.P.6 Discharge Summary, Ex.P.36 Discharge
Summary, Ex.P.26 Case Sheet and Ex.P.27 X-ray films, it
cannot be believed and accept that, due to the said accidental
injuries, the Petitioner is suffering from physical disability of
right lower limb at 56%, as, the P.W.3 is not a treated Doctor
and in this regard, the P.W.3 in his cross-examination has
clearly stated that, on 04.06.2013, he has not given initial
treatment to the Petitioner. The P.W.3 is one of the team of
Doctors, who have treated the Petitioner. Further, the P.W.3 has
SCCH-7 32 MVC.No.3437 & 3438/2013
not stated about the physical disability sustaining by the
Petitioner to the whole body. Further, the P.W.3 has not stated
anything in his affidavit about, when he has examined the
Petitioner for the assessment of disability. In this regard, he has
stated in his cross-examination that, on 14.12.2014, he has
assessed the disability of the Petitioner and the same has not
been mentioned in his affidavit. Even, the P.W.3 has not
produced the report relating to the Ex.P.24 X-ray Film. The
same has been clearly admitted by P.W.3 in his cross-
examination. He has further stated that, 3 to 6 months is
required for union of fracture bone in the normal case and he
has not produced radiological report to show the condition of
the fracture injury. He has further clearly stated that, it is
mentioned in the discharge summary, which is available in
Ex.P.25 that, hip ROM and knee normal. He has further clearly
stated that, whatever he stated the range of disability of the
Petitioner will change in future. He has further clearly admitted
that, the fracture of femur is taken place in the middle. No
doubt, the P.W.3 has stated that, the Petitioner is a software
Engineer and it is difficult for her to work by sitting. But, the
P.W.5 has produced Ex.P.32 Copy of E-mail Letter dated
13.08.2013 issued by the Petitioner to their Company and
Ex.P.33 Reliving Letter dated 13.08.2014 and has stated in his
cross-examination that, the Petitioner has resigned her services
from the Company and they have not terminated her. He has
further clearly stated that, she has not produced the medical
documents along with her resignation letter to show her
inability to continue the job in their Company. From this, it is
SCCH-7 33 MVC.No.3437 & 3438/2013
made crystal clear that, the Petitioner herself has resigned the
job and not due to the difficulties and disabilities sustained by
the accidental injuries. Further, though the P.W.1 in her cross-
examination has stated that, now she is on medical review. To
consider the same, no authenticated document is produced. The
same has also been clearly admitted by her. She has further
clearly stated that, her employer has not terminated from the
service. Further, it is clearly mentioned in Ex.P.36 Discharge
Summary that, on admission in MIOT International Hospital,
the condition of the Petitioner was stable, conscious and
oriented and well nourished and on 26.09.2014, she underwent
exchange nailing femur anti rotation plating and bone grafting
for right side and on 27.09.2014, one units of packed cells
transfused. It shows that, the Petitioner has been taking regular
follow-up treatment to the said accidental injuries as and when
required. The very evidence stated by the P.W.1 and P.W.5 that,
on medical grounds, the Petitioner was not resigned the job
clearly implies that, the accidental injuries no way caused
hurdle to the Petitioner to do her occupation and she herself
has resigned the job. Even, the Petitioner has not disclosed the
reason for resigning the earlier job. Therefore, it cannot be
believed and accept that, due to the said accidental injuries, the
Petitioner is suffering from physical disability of right lower limb
56% as stated by the P.W.5. Furthermore, the Petitioner by
taking necessary and required physiotherapy treatment can
very well reduce the said extent of 56% physical disability as
stated by the P.W.5.
SCCH-7 34 MVC.No.3437 & 3438/2013
35. However, at the time of accident, the Petitioner was 22
years old and she was a permanent employee in the Private
Company and she had sustained two grievous injuries and one
simple injury and she has been taking regular follow-up treatment
to the said accidental injuries, which has been clear from the
above said medical documents and it is clearly mentioned in
Ex.P.36 Discharge Summary that, X-rays shows fracture non-
united. By considering all these facts, this Tribunal feels that, the
Petitioner is definitely suffering from permanent physical and
functional disability to some 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. Therefore, the Petitioner is suffering from
permanent physical functional disability of 56% to the whole body
due to the said accident injuries, which is considerable one.
36. 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%.
37. As this Tribunal has already come to the conclusion
that, the age of the Petitioner was 22 years at the time of
SCCH-7 35 MVC.No.3437 & 3438/2013
accident. The multiplier corresponding to the said age as per
Sarala Varma's case is 18.
38. 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 18,481/- per month. Therefore, the loss arising out of
the said 10% disability for monthly income of Rupees 18,481/-
by applying multiplier 18 would comes to Rupees 3,99,189-60,
i.e., (Rs.18,481/- x 12 x 18 x 10%), which is rounded off to
Rupees 3,99,190/-.
39. As per Ex.P.5 Wound Certificate and evidence of
P.W.1 and P.W.3, the Petitioner had suffered one simple injury
and two grievous injuries. The Petitioner was in the Hospital as
an inpatient from 04.06.2013 to 12.06.2013, i.e., 9 days. Due to
the said injuries, the Petitioner could have definitely suffered a
lot of pain and agony. Considering the said aspects, it is just,
proper and necessary to award a sum of Rupees 35,000/-
towards pain and suffering.
40. As it is already observed that, the age of the
Petitioner was 22 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,
proper and necessary to award a sum of Rupees 10,000/-
towards loss of amenities of life to the Petitioner.
SCCH-7 36 MVC.No.3437 & 3438/2013
41. It is not disclosed by the Petitioner either in the
petition or in her evidence that, she was unmarried as on the
date of accident. However, at the time of accident, the Petitioner
was 22 years old and it is clearly mentioned by her in the
petition as well as in her affidavit that, she is a daughter of
T.Srinivas, which implies that, she was unmarried at the time of
accident. Further, it is already come to the conclusion that, due
to the accidental injuries, the Petitioner is suffering from
permanent and physical disability of 10% to the whole body. By
considering the same, this Tribunal feels that, it is just, proper
and necessary to award a sum of Rupees 10,000/-
compensation towards loss of marriage prospects.
42. The Petitioner had suffered one simple injury and
two grievous injuries and she was in the Hospital as inpatient
for 9 days and she could not do any work at least for 2 months
and thereby, she deprived the income. Therefore, at the rate of
Rupees 18,481/- per month, a sum of Rupees 36,962/- (Rupees
18,481/- X 2 months) is awarded towards loss of income during
the laid up period.
43. The P.W.1 has stated that, for follow-up treatment,
she used to travel in a taxi by spending Rupees 2,000/- per trip
and till today, she has spent about Rupees 2,00,000/- towards
her medical and conveyance expenses.
44. The Petitioner has produced Ex.P.8 Medical Bills 19
in numbers, which is amounting of Rupees 1,48,758/-, Ex.P.9
SCCH-7 37 MVC.No.3437 & 3438/2013
Medical Prescriptions 6 in numbers, Ex.P.37 Medical Bills 4 in
numbers, which is amounting of Rupees 7,096/- and Ex.P.38
Taxi Bills 2 in numbers, which is amounting of Rupees 9,309/-
and Rupees 1,670/-, totally Rupees 10,979/-. The Petitioner
has taken treatment at Sparsh Hospital, wherein, she was taken
treatment as an inpatient from 04.06.2013 to 12.06.2013, i.e.,
for 9 days. Even after giving evidence in the present case, the
Petitioner had taken treatment at Chennai Hospital. In this
regard, the P.W.1 has clearly stated in her cross-examination
that, after her earlier evidence, she took treatment in Chennai
Hospital. The same is clear from the contents of Ex.P.36
Discharge Summary issued by MIOT International Hospital,
which disclosed that, by admitting as an inpatient from
25.09.2014 to 04.10.2014, she took treatment to the said
accidental injuries and the date of surgery is on 26.09.2014 in
respect of non-union fracture shaft of femur right side with
implants in situ. Considering the nature of the injuries and line
of treatment given to the Petitioner, the possibility of spending
the said amount for the medicines and conveyance cannot be
doubted. Therefore, it is necessary to award the said actual
medical expenses, which covered under Ex.P.8, Ex.P.37 and
Ex.P.38, which is amounting of Rupees 1,66,833/- (Rupees
1,48,758/- + 7,096/- + 10,979/-). Hence, the Petitioner is
entitled for the said amount of Rupees 1,66,833/-.
45. The P.W.1, who is the Petitioner, has not stated
anything about the future medical assistance and its expenses.
The P.W.3 has stated that, the Petitioner needs further
SCCH-7 38 MVC.No.3437 & 3438/2013
treatment for the union of the fracture. No doubt, neither the
Petitioner nor the P.W.3 produced any estimation in respect of
future treatment and its expenses. But, as per Ex.P.36
Discharge Summary issued by MIOT International Hospital,
which disclosed that, by admitting as an inpatient from
25.09.2014 to 04.10.2014, she took treatment to the said
accidental injuries and the date of surgery is on 26.09.2014 in
respect of non-union fracture shaft of femur right side with
implants in situ. Further, it is clearly mentioned in Ex.P.36
Discharge Summary that, it is advised to the Petitioner for
surgery-exchange of nailing, derotation of plating and bone
grafting, which costs of Rupees 85,000/-. In this regard, the
Petitioner has not produced any documents. However, in the
said road traffic accident, the Petitioner had sustained two
grievous injuries and one simple injury, i.e., fracture right
femur and knee abrasion, left side fore head and temporal
laceration, laceration of left eye lid as per Ex.P.5 Wound
Certificate and after giving evidence, she also took treatment for
non-union of fracture injury. By considering the same, this
Tribunal feels that, it is just, proper and necessary to award
future medical expenses of Rupees 10,000/-.
46. As the Petitioner was taken treatment as an
inpatient for 9 days, it is necessary to award a sum of Rupees
3,000/- towards conveyance charges, Rupees 3,000/- towards
attendant charges and Rupees 5,000/- towards food,
nourishment and diet charges etc.,
SCCH-7 39 MVC.No.3437 & 3438/2013
47. In this way, the Petitioner is entitled for the following
amount of compensation:-
Compensation
Sl. No. Compensation heads
amount
Loss of future income
1. Rs. 3,99,190-00
arising out of 10% Disability
2. Pain and sufferings Rs. 35,000-00
3. Loss of amenities of life Rs. 10,000-00
Loss of income during laid up
4. Rs. 36,962-00
period
5. Actual medical expenses Rs. 1,66,833-00
6. Future medical expenses Rs. 10,000-00
7. Marriage Prospects Rs. 10,000-00
8. Conveyance Rs. 3,000-00
9. Attendant Charges Rs. 3,000-00
Food, Nourishment &
10. Rs. 5,000-00
Diet charges
TOTAL Rs. 6,78,985-00
48. In all, the Petitioner is entitled for total
compensation of Rupees 6,78,985/- along with interest at the
rate of 6% per annum on the above said sum (excluding future
medical expenses of Rupees 10,000/-) from the date of Petition
till payment.
49. IN M.V.C.No.3438/2014 :- The P.W.2 has stated
that, at the time of accident, he was aged about 31 years. The
Petitioner has produced Ex.P.16 SSLC Certificate, Ex.P.17
Driving Licence and Ex.P.19 Pan Card relating to him, which
disclosed that, his date of birth is 04.04.1982. The date of
accident is 04.06.2013. From the said dates, it appears that, at
the time of accident, the Petitioner was 32 years old. Hence, the
SCCH-7 40 MVC.No.3437 & 3438/2013
age of the Petitioner is considered as 32 years at the time of
accident.
50. The P.W.2 has stated that, he was working as a
Senior Sales Executive at Kharidi Jewelers, Bangalore and was
earning Rupees 22,000/- per month and along with that work,
he had a own business, i.e., distribution of Parle Products,
which is registered as Unnathi Enterprises and was earning
Rupees 25,000/- per month from distribution. The Petitioner
has produced Ex.P.23 Pass Book and Ex.P.24 Bank Statement.
But, based on the said oral version of P.W.2 coupled with the
contents of Ex.P.23 and Ex.P.24, it cannot be believed and
accept the avocation and income of the Petitioner at the time of
accident, as, the contents of Ex.P.23 and Ex.P.24 do not
disclose that, regularly he was earning Rupees 25,000/- from
the said work. Furthermore, the Petitioner has not produced
any authenticated documents issued by his employer to show
that, at the time of accident, he was working as a Senior Sales
Executive at Kharidi Jewelers, Bangalore and was earning
Rupees 22,000/- per month and also doing business, i.e.,
distribution of Parle Products, which is registered as Unnathi
Enterprises and the same has also been clearly admitted by the
P.W.2 in his cross-examination. He has further stated that, he
has not produced any documents to show that, he was drawing
Rupees 25,000/- salary per month. Though he has stated in his
cross-examination that, he has entered into agreement with
Unnathi Enterprises, he has not produced any documents in
this regard. He has further clearly stated that, he has not filed
SCCH-7 41 MVC.No.3437 & 3438/2013
IT returns. From this, it appears that, at the time of accident,
the Petitioner was not earning Rupees 25,000/- per month.
However, as the Petitioner was 32 years old, which disclosed his
family status and considering the same, this Tribunal feels that,
it is just, proper and necessary to consider the notional income
of the Petitioner is of Rupees 6,000/- per month at the time of
accident, which is believable and considerable one. Hence, the
notional income of the Petitioner is considered as Rupees
6,000/- per month at the time of accident.
51. The P.W.2 has stated that, he was treated as an
inpatient from 04.06.2013 to 12.06.2013 and got discharged
with advise for follow-up treatment. He has further stated that,
after discharge from the Hospital, he took follow-up treatment,
as per the Doctor's advise by visiting the Sparsh Hospital, once
in a week for 2 months and after that, he was taking follow-up
treatment at Ortho Lid Clinic, Jayanagar, Bangalore, wherein,
he was taking regular treatment as an outpatient and even till
today, he is going once in 15 days. He has further stated that,
the Doctor has suggested for complete bed rest for one and half
year.
52. As this Tribunal has already observed based on the
contents of Ex.P.14 Wound Certificate and Ex.P.15 Discharge
Summary that, in the said road traffic accident, the Petitioner
had sustained 3 grievous injuries and by admitting as an
inpatient from 04.06.2013 to 12.06.2013 i.e., for 9 days, he
took treatment in the Sparsh Hospital. It is clearly mentioned in
SCCH-7 42 MVC.No.3437 & 3438/2013
Ex.P.15 Discharge Summary that, the facial injuries are healed
well and though it is advised to the Petitioner and his
attendants about the need for surgery considering the fracture
instability, which could lead to neurological deficit and late
onset kyphosis, but, they were unwilling for surgery at present.
It is further mentioned in Ex.P.15 that, the Petitioner was
advised for bed rest and review after two weeks and his
condition at discharge was that, facial injuries are healed, but,
fracture D5 needs surgery. From this, it is made crystal clear
that, during the course of treatment, the Petitioner was not
underwent any surgery as he was unwilling to undergo surgery
and he was advised to take bed rest and to take surgery for
fracture of D5. It is also clearly mentioned that, his facial
injuries were healed well. From this, medical evidence, it is
made crystal clear that, the Petitioner had taken only bed rest
and not taken any surgical medical treatment and follow-up
treatment after discharge. Therefore, the said evidence stated by
the P.W.2 in respect of follow-up treatment taken as per the
advise of the Doctor after discharge from the Hospital cannot be
believed and accept.
53. The P.W.2 has stated that, inspite of best and
continuous treatment, he has become totally disabled and he is
suffering from disabilities, such as, he cannot sit for few
minutes also, there is a severe back pain and he cannot use his
right hand even to eat, having severe pain in right hand and
totally bed ridden for D5 fracture. He has further stated that,
after the accident, he is unable to work in Kharidi Jewellers and
SCCH-7 43 MVC.No.3437 & 3438/2013
even he stopped the distribution of Parle Products and totally
bed ridden and now he has become disabled to do any work
from the date of accident till now and he is not able to work due
to the accidental injury and his life has become dark and
miserable.
54. The Petitioner has examined the Doctor as P.W.4,
who has stated in his examination-in-chief that, with an alleged
history of road traffic accident, the Petitioner was examined
clinically, radiologically and investigated, diagnosed to have
injuries i.e., CLW over the right cheek, fracture right clavicle,
unstable fracture 5th dorsal spine. And the nature of injuries
and the proposed treatment including the complication and the
results was explained to the patient and his attender and was
treated conservatively with brace and bed rest since he refused
surgery and when the patient was stable he was discharged
with OPD follow-up and over at time the fractures healed. He
has further stated that, the Petitioner was reviewed on
19.12.2013 for assessment of disability and he complaints of
pain in the back, stiffness in back, weakness in the right upper
limb and on examination tenderness over the dorsal spine,
spasm in the back, mild gibbous is present He has further
stated that, with this using Central Government Notification,
the Petitioner has disability of 20%. The P.W.4 has produced
Ex.P.27 Case Sheet and Ex.P.28 X-ray Films 3 in numbers.
55. No doubt, this Tribunal has already come to the
conclusion that, in the said road traffic accident, the Petitioner
SCCH-7 44 MVC.No.3437 & 3438/2013
had sustained 3 grievous injuries, i.e., CLW over right cheek,
fracture clavicle right, fracture of D5 (flexion distraction injury-
unstable) and by admitting as an inpatient from 04.06.2013 to
12.06.2013, i.e., 9 days, he took treatment to the said
accidental injuries in Sparsh Hospital. But, based on the same,
as well as the above said oral version of P.W.1 and P.W.2
coupled with the contents of Ex.P.14 Wound Certificate, Ex.P.15
Discharge Summary, Ex.P.27 Case Sheet and Ex.P.28 X-ray
films, it cannot be believed and accept that, due to the said
accidental injuries, the Petitioner is suffering from the said
difficulties and disabilities of 20%, as, the P.W.4, who has
assessed the disability to the Petitioner, is not a treated Doctor
and he has only assessed the disability of the Petitioner. The
same has been clearly admitted by him in his cross-
examination. Furthermore, the contents of Ex.P.15 Discharge
Summary and the examination-in-chief of P.W.4 clearly
disclosed that, the Petitioner was treated conservatively, with
brace and bed rest, as, he has refused to undergo surgery to the
said fracture injuries. It shows that, the Petitioner not followed
the medical advise in respect of treatment to the said accidental
injuries. Further, the P.W.4 in his cross-examination has clearly
stated that, now the extent of disability can be reduced. He has
assessed the disability on 19.10.2013. He has clearly stated
that, the Petitioner can do gold sale executive work with little
difficulty. He has further stated that, only conservative
treatment was given to the Petitioner and no surgery was done.
Furthermore, the P.W.2 in his cross-examination has clearly
stated that, since one year, he is doing the business in
SCCH-7 45 MVC.No.3437 & 3438/2013
distribution and even now, he is doing the said business. More
so, this Tribunal has already come to the conclusion that, the
Petitioner has failed to prove his avocation and income at the
time of accident. Furthermore, except stating that, the
Petitioner has disability of 20%, the P.W.4 has not stated in his
affidavit that, how and on what basis and for consideration of
which points, he came to the conclusion that, the Petitioner has
disability of 20%. Even, the P.W.4 has not produced the
disability certificate and the clinical notes to show how he
opined and came to the conclusion about such extent of
disability of the Petitioner. The Petitioner has not adduced
sufficient acceptable medical evidence to consider the alleged
difficulties and disability, which is arising out of the accidental
injuries. Therefore, the evidence of P.W.2 and P.W.4 in respect
of the disability and difficulties cannot be believed and accept.
56. As the Petitioner had taken treatment conservatively,
which is clear from the above said medical evidence as well as
the evidence of P.W.2 and P.W.4 and he has utterly failed to
prove the follow-up treatment taken by him even after discharge
and the Petitioner has failed to prove the disability arising out of
the accidental injuries, he is not entitled for the compensation
in respect of disability. Therefore, the case made out by the
Petitioner in respect of permanent physical and functional
disability due to the accidental injuries cannot be believed and
accept. Hence, the Petitioner is not entitled for any
compensation towards permanent physical disability, i.e., loss
SCCH-7 46 MVC.No.3437 & 3438/2013
of future income, loss of earning capacity, loss of amenities of
life and future medical expenses.
57. As per Ex.P.14 Wound Certificate and evidence of
P.W.1 and P.W.4, the Petitioner had sustained 3 grievous
injuries, in the road traffic accident. The Petitioner was in the
Sparsh Hospital as an inpatient from 04.06.2013 to 12.06.2013,
i.e., 9 days. Due to the said injuries, the Petitioner could have
definitely suffered a lot of pain and agony. Considering the said
aspects, it is just, proper and necessary to award a sum of
Rupees 50,000/- towards pain and suffering.
58. The Petitioner had sustained 3 grievous injuries and
he was in the Hospital as an inpatient for 9 days and he could
not do any work at least for 3 months and thereby, he deprived
the income. Therefore, at the rate of Rupees 6,000/- per month,
a sum of Rupees 18,000/- is awarded towards loss of income
during the laid up period.
59. The P.W.2 has stated that, for follow-up treatment,
he used to travel in a taxi by spending Rupees 2,000/- per trip
and till today, he has spent about Rupees 1,50,000/- towards
medical and conveyance expenses. But, the Petitioner has only
produced Ex.P.20 Medical Bills 21 in numbers, which is
amounting of Rupees 1,15,639/- and Ex.P.21 Medical
Prescriptions 11 in numbers. The Petitioner has taken
treatment at Sparsh Hospital as an inpatient from 04.06.2013
to 12.06.2013, i.e., for 9 days. Considering the nature of the
SCCH-7 47 MVC.No.3437 & 3438/2013
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 1,15,639/-, which covered
under Ex.P.20 Medical Bills, to the Petitioner.
60. As the Petitioner was 32 years at the time of accident
and as the P.W.4 has clearly stated in his cross-examination
that, during the course of treatment, the Petitioner was not
underwent any surgery and as the Petitioner has not stated
anything about the future medical assistance and its expenses,
the Petitioner is not entitled for any compensation towards
future medical expenses.
61. As the Petitioner was taken treatment as an
inpatient for 9 days, it is necessary to award a sum of Rupees
3,000/- towards conveyance charges, Rupees 3,000/- towards
attendant charges and Rupees 5,000/- towards food,
nourishment and diet charges etc.,
62. In this way, the Petitioner is entitled for the following
amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and sufferings Rs. 50,000-00
2. Loss of income during
Rs. 18,000-00
laid up period
3. Actual medical
Rs. 1,15,639-00
expenses
SCCH-7 48 MVC.No.3437 & 3438/2013
4. Conveyance Rs. 3,000-00
5. Attendant Charges Rs. 3,000-00
6. Food, Nourishment &
Rs. 5,000-00
Diet charges
TOTAL Rs. 1,94,639-00
63. In all, the Petitioner is entitled for total
compensation of Rupees 1,94,639/- along with interest at the
rate of 6% per annum on the above said sum from the date of
Petition till payment.
64. While answering Issue No.1, this Tribunal has
already come to the conclusion that, the offending Car bearing
Registration No.KA-51-P-6688 as well as its driver are very
much involved in the said road traffic accident, wherein, the
Petitioner In M.V.C.No.3437/2013 had sustained two grievous
injuries and one simple injuries and the Petitioner in
M.V.C.No.3438/2013 had sustained 3 grievous injuries and due
to the high speed, rash and negligent manner of driving of the
offending Car by R.W.2 itself, the said road traffic accident was
taken place. The Petitioners in the cause title of the petitions
have clearly mentioned that, the Respondent No.1 is the insurer
and the Respondent No.2 is the owner of the offending Car
bearing Registration No.KA-51-P-6688, which disclosed that, at
the time of accident, the Respondent No.2 was a registered
owner of the said offending Car and its period of insurance is
from 19.03.2014 to 18.03.2014, which covers the date of
accident. In this regard, the Respondent No.1 has also produced
the true copy of the insurance policy relating to the said
SCCH-7 49 MVC.No.3437 & 3438/2013
offending Car bearing Registration No.KA-51-P-6688, which also
clearly disclosed that, at the time of accident, the Respondent
No.2 was a registered owner and the Respondent No.1 was an
insurer of the said offending Car and its period of insurance is
from 19.03.2014 to 18.03.2014, which covers the date of
accident. The Petitioner in M.V.C.No.3438/2013 has produced
Ex.P.17 Driving Licence relating to him, which disclosed that, at
the time of accident, he was having a valid and effective driving
licence to drive the Car bearing Registration No.KA-05-MG-
7047, wherein, both the Petitioners were proceeding. The R.W.2,
who is the driver of the said offending Car, has clearly admitted
that, he was driving the offending Car bearing Registration
No.KA-51-P-6688 at the time of accident on 04.06.2013 at 9.20
a.m. There is no allegation leveled as against the R.W.1 in
Ex.P.2 Charge Sheet that, at the time of accident, he was not
having a valid and effective driving licence to drive such class of
vehicle. The violation of the terms and conditions of the
admitted Insurance Policy is not proved by the Respondent
No.1. Though the notice was duly served on the Respondent
No.2, who was a registered owner of the said offending Car, he
was remained absent and hence, he is placed as exparte. Under
such circumstances, the Respondent No.1 being an Insurer and
Respondent No.2 being the R.C. Owner of the offending Car
bearing Registration No.KA-51-P-6688, are jointly and severally
liable to pay the above said compensation and interest to both
the Petitioners. Since the Respondent No.1 is an insurer, it shall
indemnify the Respondent No.2. Hence, Issue No.2 in
SCCH-7 50 MVC.No.3437 & 3438/2013
M.V.C.No.3437/2013 and M.V.C.No.3438/2013 are
answered accordingly.
65. ISSUE NO.3 IN BOTH THE CASES :- For the
aforesaid reasons, I proceed to pass the following;
ORDER
The petition filed by the Petitioners in M.V.C.No.3437/2013 and M.V.C.No.3438/2013 under Section 166 of the Motor Vehicles Act, 1989, are hereby partly allowed with costs.
The Petitioner in M.V.C.No.3437/2013 is entitled for compensation of Rupees 6,78,985/- with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
The Petitioner in M.V.C.No.3438/2013 is entitled for compensation of Rupees 1,94,639/- with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this order, in both the cases.
SCCH-7 51 MVC.No.3437 & 3438/2013In the event of deposit of compensation and interest in both the cases, 50% amount relating to the Petitioner in M.V.C.No.3437/2013 and the entire amount relating to the Petitioner in M.V.C.No.3438/2013 shall be released in their favour through account payee cheques respectively, on proper identification.
Remaining 50% amount relating to the Petitioner in M.V.C.No.3437/2013 shall be kept in F.D. in her name in any nationalized Bank of her choice, for a period of 3 years.
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.3437/2013 and the copy of the same shall be kept in M.V.C.No.3438/2013.
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 24th day of August, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
SCCH-7 52 MVC.No.3437 & 3438/2013ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Lavanya
P.W.2 : Vinay
P.W.3 : Dr. Nagaraj
P.W.4 : Dr. Nagaraj.B.N
P.W.5 : M.Ravi
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Charge Sheet
Ex.P.3 : True copy of Hand Sketch
Ex.P.4 : True copy of Panchanama
Ex.P.5 : True copy of Wound Certificate
Ex.P.6 : Discharge Summary
Ex.P.7 : Statement of Bank Account
Ex.P.8 : Medical Bills (19 in nos.)
Ex.P.9 : Medical Prescriptions (6 in nos.)
Ex.P.10 : X-ray films (5 in nos.) Ex.P.11 : Notarised copy of Voter Identity Card Ex.P.12 : Notarised copy of Dependant Army Card Ex.P.13 : Attested copy of HSC Certificate Ex.P.14 : Copy of Wound Certificate Ex.P.15 : Discharge Summary Ex.P.16 : Notarised copy of S.S.L.C. Certificate Ex.P.17 : Notarised copy of Driving Licence Ex.P.18 : Notarised copy of Aadhar Card Ex.P.19 : Notarised copy of PAN Card Ex.P.20 : Medical Bills (3 in nos.) Ex.P.21 : Medical Prescriptions (11 in nos.) Ex.P.22 : X-ray Films (3 in nos.) Ex.P.23 : Notarised copy of Pass-book Ex.P.24 : Bank Statement Ex.P.25 : Case Sheet SCCH-7 53 MVC.No.3437 & 3438/2013 Ex.P.26 : X-ray Film Ex.P.27 : Case Sheet Ex.P.28 : X-ray Films (3 in nos.) Ex.P.29 : Appointment Letter dated 10.01.2013 Ex.P.30 : Salary Break up relating to Lavanya T.S. Ex.P.31 : Pay Slip for the month of January 2013 to June 2013 relating to Lavanya. T.S. (6 in nos.) Ex.P.32 : Copy of E-mail Letter dated 13.08.2013 issued by Lavanya Srinivas Ex.P.33 : Reliving Letter dated 13.08.2014 Ex.P.34 : Letter dated 20.12.2012 with annexure Ex.P.35 : Letter dated 01.07.2013 Ex.P.36 : Discharge Summary Ex.P.37 : Medical Bills (4 in Nos.) Ex.P.38 : Taxi Bills (2 in Nos.)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : G.Shivakumar
R.W.2 : C.B.Shashi
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Notarised copy of Letter dated 24.07.2013 Ex.R.2 : Claim Form (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.