Bangalore District Court
In Ashoka G vs Tata Aig General on 27 May, 2016
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 27th DAY OF MAY'2016
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C Nos.763, 856, 857, 858, 1117, 1120 & 2645/2015
Petitioner in Ashoka G.,
M.V.C. No.763/2015 S/o.Govindaraj (Late) and Meenakshi,
Aged about 34 years,
R/at No.94/2, 9th Cross,
Shubhodaya Kalyana Mantapa Road,
Karekallu,
Kamakshipalya,
Bangalore 560 079.
Petitioner Syed Afsar,
in M.V.C. 856/2015 S/o.Syed Mohammed,
Aged 40 years,
R/at No.30/2,
3rd Cross, Cunnobpet,
Bangalore 560 002.
Petitioner Babu Sherif @ Babu S.,
in M.V.C. S/o.Sardar Sherif,
No.857/2015 Aged 28 years,
R/at No.554/A,
Someshwara Nagar,
Siddapura,
Opp.Little Angels School,
1st Block, Jayanagar,
Bangalore 560 011.
Petitioner Abdul Wajid @ Wazid Pasha,
in M.V.C. S/o.Alla Bakash,
No.858/2015 Aged 35 years,
R/at No.91, Krishnamurthy Colony,
Jayanagar 1st Block,
Bangalore South.
Petitioner in MVC Nazeer Pasha @ Malik Pasha,
No.1117/2015 S/o.Abdul Rasheed,
Aged 40 years,
R/at No.16/8, 9th Main Road,
Near Elahi Nursing Home,
Padarayanapura,
Mysore Road,
Bangalore 560 026.
Petitioners in MVC 1) Smt.Zakira Banu @ Jakira,
No.1120/2015 W/o.Late Afsar Pasha,
Aged 45 years,
2) Imran Pasha,
S/o.Late Afsar Pasha,
Aged 27 years,
3) Mubarak Pasha,
S/o.Late Afsar Pasha,
Aged 20 years,
4) Miss Firdos Banu,
D/o.Late Afsar Pasha,
Aged 25 years,
All are residing at No.129,
Badamakhan, H.Siddaiah Road,
Opp.MTR Hotel, Bangalore 560 027.
Petitioner in MVC Mr.Aslam @ Aslam Ulla Beig,
No.2645/2015 S/o.Ghouse Beig @ Ghouse Bee,
Aged 41 years,
R/at No.60, Someshwara Nagar,
Jayanagara 1st Block, Bangalore South,
Jayanagar 3rd Block,
Bangalore 560 011.
All the petitioners are represented by Sri
B.S.Devaraj, Advocate.
-Vs-
Respondents: 1. TATA AIG GENERAL
(Common in all the INSURANCE CO., LTD.,
petitions) No.69, 2nd Floor,
J.P. & Devi Jambukeshwari
Arcade,
Miller's Road, Bangalore 560 052.
(Policy No.015306826000, Period
of Insurance from 18.06.2014 to
17.06.2015
2. Mr.Javeed Khan,
S/o.Khasim Khan,
R/at No.28, 7th Main,
Gurappanapalya,
Bannerghatta Road,
Bangalore 560 029.
(Respondent No.2 in all the petitions -
Exparte
Respondent No.1 by Sri Ravi
S.Samprathi, Advocate)
COMMON JUDGMENT
MVC No.763/2015 has been filed by the petitioner seeking
compensation of Rs.1 lakh for the injuries sustained, MVC No.856/2015 has
been filed by the petitioner seeking compensation of Rs.10 lakhs for the
injuries sustained, MVC No.857/2015 has been filed by the petitioner
seeking compensation of Rs.6 lakhs for the injuries sustained, MVC
No.858/2015 has been filed by the petitioner seeking compensation of Rs.6
lakhs for the injuries sustained, MVC No.1117/2015 has been filed by the
petitioner seeking compensation of Rs.20 lakhs for the injuries sustained,
MVC No.1120/2015 has been filed by the petitioners seeking compensation
of Rs.20 lakhs for the death of Afsar Pasha and MVC No.2645/2015 has
been filed by the petitioner claiming compensation of Rs.2 lakhs for the
injuries suffered, in the accident that occurred on 04.01.2015 at about 05.45
pm., on K.R.Road near K.R.Market, Bengaluru.
2. Since all these petitions are arising out of the same accident and
therefore, they are being disposed of by this common judgment.
3. It is the case of the petitioners in all the cases that on 04.01.2015, at
about 5.45 pm., the deceased Afsar Pasha in MVC 1120/2015 along with the
petitioners in other cases were going in procession on account of Id-Milad.
The procession was proceeding on the left side of K.R.Road and when the
procession came near K.R.Market near Annakuteera Hotel, at that time, all
of a sudden, a LGV Tempo bearing registration No.KA.20/934 driven by its
driver at a very high speed and in rash and negligent manner, came from
K.R.Road without observing the traffic rules and regulations and having
come to the extreme right side of the road, dashed against the persons who
were going in the procession. Immediately after the accident, all the injured
persons ie., the petitioners and the deceased Afsar Pasha were shifted to
Victoria Hospital, Bengaluru, wherein they were treated as inpatients. But
injured Afsar Pasha in MVC No.1120/2015 in spite of administering the best
available treatment, succumbed to the injuries on the same day.
4. The petitioner in MVC No.763/2015 was aged 34 years, at the time of
accident and doing salesman work at Krishna Textiles and getting monthly
salary of Rs.12,000/- per month. He has incurred Rs.10,000/- for treatment
and other connected purposes. He suffered permanent disability on account
of the injuries suffered by him in the accident and thereby suffered loss of
future income. Hence, the petitioner in MVC No.763/2015 claims a
compensation of Rs.1 lakh.
5. The petitioner in MVC No.856/2015 was aged 40 years, at the time of
accident and doing spray painting work under several contractors and getting
a daily pay of Rs.600/-. He has incurred Rs.40,000/- for treatment and other
connected purposes. He suffered permanent disability on account of the
injuries suffered by him in the accident and thereby suffered loss of future
income. Hence, the petitioner in MVC No.856/2015 claims a compensation
of Rs.10 lakhs.
6. The petitioner in MVC No.857/2015 was aged 28 years, at the time of
accident and being a mechanic and self employed, earning Rs.600/- per day.
He has incurred Rs.40,000/- for treatment and other connected purposes. He
suffered permanent disability on account of the injuries suffered by him in
the accident and thereby suffered loss of future income. Hence, the
petitioner in MVC No.857/2015 claims a compensation of Rs.6 lakhs.
7. The petitioner in MVC No.858/2015 was aged 35 years, at the time of
accident and being a welder working under several contractors, earning
Rs.600/- per day. He has incurred Rs.40,000/- for treatment and other
connected purposes. He suffered permanent disability on account of the
injuries suffered by him in the accident and thereby suffered loss of future
income. Hence, the petitioner in MVC No.858/2015 claims a compensation
of Rs.6 lakhs.
8. The petitioner in MVC No.1117/2015 was aged 40 years, at the time
of accident and doing scrap business, earning Rs.15,000/- per month. He
has incurred Rs.1,50,000/- for treatment and other connected purposes. He
suffered permanent disability on account of the injuries suffered by him in
the accident and thereby suffered loss of future income. Hence, the
petitioner in MVC No.1117/2015 claims a compensation of Rs.20 lakhs.
9. The petitioners in MVC No.1120/2015 claim that the deceased was
aged 55 years, at the time of accident and being a scrap merchant and self
employed, earning Rs.15,000/- per month. He was the sole earning member
in the family. The petitioners have incurred Rs.1 lakh for hospitalization,
medical, funeral and other relates purposes. Hence, the petitioners in MVC
No.1120/2015 claimed a compensation of Rs.20 lakhs.
10.The petitioner in MVC No.2645/2015 was aged 41 years, at the time
of accident and being a welder/fabricator and self employed, earning
Rs.600/- per day. He has incurred Rs.5,000/- for treatment and other
connected purposes. He suffered permanent disability on account of the
injuries suffered by him in the accident and thereby suffered loss of future
income. Hence, the petitioner in MVC No.2645/2015 claims a
compensation of Rs.2 lakhs.
11.Further, it is the common case of the petitioners in all the cases that
the accident occurred on account of the rash and negligent driving of the
LGV vehicle by its driver and hence, the jurisdictional police have filed
charge sheet against the driver of the said vehicle. Hence, the petitioners
claim compensation, as stated above, from the respondent No.1 and 2, being
the Insurer and Owner of the said vehicle.
12. Pursuant to filing of the petition, notice was issued to both the
respondents. The respondent No. 2 in all the petitions remained absent and
hence, he has been exparte and the respondent No.1 in all the petitions
appeared through its counsel and filed statement objections.
13. In the statement of objections, in all the petitions, the respondent
No.1 has contended that the petitions are not maintainable either in law or on
facts. The respondent No.1 seeks protection under Section 147 and 149 of
the MV Act, 1988. The respondent No.1 contended that there is non-
compliance of provision of Section 134(c) and 158(6) of the MV Act, both
by the respondent No.2 and also the jurisdictional Police.
14.The respondent No.1 has admitted to have insured the LGV bearing
No.KA.20/934 and the liability if any is subject to the terms and conditions
of the policy.
15.The respondent No.1 has contended that the driver of the LGV was
not holding a valid and effective driving licence at the time of accident and
the second respondent has handed over the possession of the vehicle to the
said driver and thereby contravened the provision of the MV Act. Further, it
is contended that the vehicle in question did not possess a valid Fitness
Certificate and Permit and there being breach of policy conditions by the
respondent No.2, the respondent No.1 is not liable to indemnify the
respondent No.1.
16. The respondent No.1 has denied the averments in column NO.1 to 14
and 17 to 21 of all the petitions regarding the age, avocation and income of
the deceased in MVC No.1120/2015 and the petitioners' in other cases and
also the nature of injuries, treatment and the amount spent for the same and
the disability suffered by them, as false and baseless and further contended
that the allegations made in column No.22 of the petition are all false and
put the petitioners to strict proof of the same.
17.The amount of compensation claimed is highly exaggerated in all the
petitions and hence, the respondent No.1 prays the Tribunal to reject all the
petitions.
18.The above pleadings gave rise to framing of the following issue:-
M.V.C.763, 856, 857, 858,1117 & 2645/2015:-
1. Whether the petitioner's prove that he sustained grievous injuries
in a motor vehicle accident that occurred on 04.01.2015 at about
5.45 pm., on K.R.Road near Annakuteera Hotel, K.R.Market,
Bangalore within the jurisdiction of Chamarajpet Traffic Police
Station on account of rash and negligent driving of the LGV
Tempo bearing registration No.KA.20/934 by its driver?
2. Whether the petitioner is entitled for compensation? If so how
much and from whom?
3. What order?
M.V.C. No.1120/2015
1. Whether the petitioners prove that the deceased succumbed to
injuries in a motor vehicle accident that occurred on 4.1.2015 at
about 5.45 pm., on K.R.Road near Annakuteera Hotel,
K.R.Market, Bangalore within the jurisdiction of Chamarajpet
Traffic Police Station on account of rash and negligent driving
of the LGV Tempo bearing registration No.KA.20/934 by its
driver?
2. Whether the petitioners are entitled for compensation? If so,
how much and from whom?
3. What order or award?
19. In order to prove their case, the petitioner No.1 in MVC
No.1120/2015 has been examined as PW 1 and through her evidence,
Exhibits P.1 to P.12 are marked. The petitioner in MVC No.857/2015 has
been examined as PW 2 and through his evidence, Exhibits P.13 to P.18 are
marked. The petitioner in MVC No.1117/2015 has been examined as PW 3
and through his evidence, Exhibits P.19 to 25 are marked. The petitioner in
MVC No.763/2015 has been examined as PW 4 and through his evidence
Exhibits P.27 to 31 are marked. The petitioner in MVC No.856/2015 has
been examined as PW 5 and through his evidence Exhibits P.32 to 35 are
marked. The petitioner in MVC No.858/2015 has been examined as PW 6
and through his evidence, Exhibits P.36 to 39 are marked. The petitioner in
MVC No.2645/2015 has been examined as PW 7 and through him, Exhibits
P.40 and 41 are marked. The petitioners have also examined 3 more
witnesses as PW 8 to 10 and through their evidence, Exhibits P.42 to 57 are
marked.
20. On behalf of the respondent No.1, 2 witnesses are examined as
RW 1 and Exhibits R. 1 to 7 are marked.
21. After closure of evidence, I have heard the arguments of the
petitioners' counsel and also that of the counsel for respondent No.1.
22. The counsel for the Petitioner has relied upon the following
citations:
1) Copy of unreported judgment in MFA No.9394/2013(MV)
2) 2011 AIR SCW 2609
3) 2010 ACJ 760
4) 2012 ACJ 191
5) 2007 ACJ 13
6) 2014 ACJ 653
7) 2009 ACJ 334
8) Copy of unreported judgment in MFA 2955/2013(MV)
9) 2015 ACJ 2142
10) ILR 2014 KAR 191
11) 2013 AIR SCW 3941
12) 2004 ACJ 1
13) Copy of unreported judgment in MFA 10009/2013
14) Copy of unreported judgment in MFA 6621/2006
15) 2013 ACJ 1403
16) 2014(4) TAC 673 (SC)
17) 2008 AIR SCW 3251
23. The Counsel for the respondent No.1 has relied upon the
judgment reported in 2014(2) AKR 269.
24. I have gone through the principles laid down in the above
judgments. The principles laiddonw in the above judgments will be made
applicable at the relevant point.
25. My common findings on the above issues are as under:-
1) In the affirmative,
2) Partly in the affirmative,
3) As per final order, for the following:-
REASONS
26. Issue No.1 in all the cases:- Since all these claim petitions are
arising out of the same accident and issue No.1 in all the petitions is
regarding the negligence of the driver of the LGV Tempo, they are taken up
together for discussion.
27. It is the common case of the petitioners in all the petitions that
the accident and the resultant death of Afsar Pasha in MVC 1120/2015 and
injuries to the petitioners in other cases are due to rash and negligent driving
of the LGV Tempo bearing No.KA.20/934 by its driver. They have
contended in their respective petition that on 04.01.2015, deceased Afsar
Pasha and the injured petitioners in other cases were proceeding in a
procession on account of Id-Milad and while proceeding so, when came in
front of Annakuteera Hotel and standing by the side of the road, at that time,
the driver of the said vehicle driven the same in rash and negligent manner
and dashed against them and in the accident, Afsar Pasha, on account of
grievous injuries died at the hospital on the same day and others have
suffered injuries and thus, they all attribute negligence on the part of the
driver of the LGV Tempo for the accident and also for the death of Afsar
Pasha and injuries to other petitioners.
28. In order to substantiate their case, the first petitioner in MVC
No.1120/2015 has been examined as PW 1. In her evidence, the police
documents such as FIR, Sketch, Mahazar, IMV Report and Charge Sheet are
marked as Ex.P.1 to 3 and 6 and 7. However, she is not an eye-witness to
the accident as is evident from her admission in her cross-examination. The
petitioner's in other cases have been examined as PW 2 to 7. In their
evidence, they attribute negligence to the driver of the LGV Tempo. PWs 2
to 7 have been cross-examined by the counsel for the respondent No.1.
29. In the cross-examination of PW 2, 3 and 5 to 7, it is suggested to
them that themselves and the respondent No.2 are relatives and the said
suggestion has been denied by them. They admit that on the date of
accident, there was a festival. It is suggested to them that in order to attend
the festival, they were traveling in the tempo and the same turtle and the said
suggestion has been denied by them. In the cross-examination of PW 4, it is
elicited that the accident has occurred near Apsara Theatre when he was
proceeding home after attending the duty and he saw the tempo at the
distance of 5 to 10 feet before the accident. The tempo dashed against him
and he does not know what happened afterwards.
30. The respondent No.1 has examined one of its Officers as RW 1
and in his evidence, RW 1 says that lorry is registered as commercial goods
carrying vehicle and shall have valid and effective fitness certificate and the
LGD did not held valid and effective fitness certificate as on the date of the
accident. Further, it is the evidence of RW 1 that the accident has occurred
due to the sole negligence of the injured and the deceased as the same is
evident from the spot sketch and as per the spot sketch, there being the foot
path on both side of the road, the injured and deceased were proceeding on
the road having knowledge of the consequence and sustained injuries by
their own negligence.
31. Now, let me appreciate both oral and documentary evidence
available before the Court.
32. As per the case of the petitioners, they were proceeding in a
procession and while proceeding so, when came in front Annakuteera Hotel
and standing by the side of the road, the LGV Tempo came to the right side
of the road and dashed against them. As per the Sketch marked as Ex.P.2
and the Spot Mahazar Ex.P.3, it is evident that the accident spot is at a
distance of 4 feet away from the right edge of the road. The respondent
No.1, in the statement of objections, denied the case of the petitioners and
also the manner in which the accident occurred, whereas in the evidence of
RW 1, examined for respondent No.1, he says that as per the sketch, though
there being the foot path on both sides of the road, the injured and the
deceased were proceeding on the road having knowledge of the
consequence. Though the Counsel for the respondent No.1 in the cross-
examination of PW 2, 3 and 5 to 7 suggested that they were traveling in the
tempo and since the same turtle, suffered injuries, but as stated above,
Ex.P.2 Sketch and the Ex.P.3 Spot Mahazar speak a different story, in as
much, as the deceased and the petitioners when standing at a distance of 4
feet away from the right edge of the road, the vehicle came there and dashed
against them. Even if it is assumed that the petitioners and the deceased were
proceeding on the road, ignoring the foot path, the driver of the LGV
Tempo, ought not to have come to the right portion of the road. Vehicles are
required to pass on the left side of the road, but in the case on hand, the spot
of accident is shown extremely on the right side of the road. What made the
driver of the LGV Tempo to come to right side of the road is not explained
or the driver of the LGV Tempo is examined, who would have been the best
person to say about the same. Moreover, the Police after investigation, filed
charge sheet against the driver of the LGV Tempo. At this juncture, it is
important to note that all the witnesses who have been examined on behalf
of the petitioners reiterated the averments of the petition that the accident
has occurred on account of the negligence on the part of the driver of the
LGV Tempo and though these witnesses are cross-examined, nothing worth
has been elicited from them to discard their evidence. As stated above, if the
accident has not occurred in the manner as stated by petitioners, then the
respondent No.1 ought to have examined the driver of the LGV Tempo, who
would have been the best person to explain as to how exactly the accident
occurred, but the respondent No.1 has failed to do so. Hence, I answer issue
No.1 in all the cases in the affirmative.
33. Issue No.2 in MVC No.763/2015:- The petitioner of this case
viz., Ashok G., has been examined as PW 4. In his evidence, the petitioner
says that in the accident, he suffered injuries to his right chest and
immediately, he was shifted to Victoria Hospital for first aid wherein he was
treated as an outpatient. In order to substantiate his case regarding the
injuries suffered by him, treatment administered and the amount spent for
treatment and the disability said to have been suffered by him, the petitioner
has filed Ex.P.27 Wound Certificate issued by Victoria Hospital, Bengaluru,
perusal of which clearly reveals that the petitioner has suffered the following
injuries:
1) Abrasion over left thigh 3X2 cm
2) Abrasion over right side chest 3X2cm and tenderness over
some area.
34. The doctor who issued the above wound certificate has opined the
above injuries as simple in nature. Apart from the said Wound Certificate,
the petitioner has also produced the copy of the X-ray report of Chest and
further produced the OP Record marked as Ex.P.28. The petitioner has also
produced his Voters ID Card as Ex.P.29 and Medical bills, accounting to
Rs.407/- marked as Ex.P.30. From the perusal of the above, it can be
gathered that in the accident, the petitioner has suffered simple injuries to his
chest and he was treated as outpatient and that he has spent an amount of
Rs.407/- towards treatment. Thus, considering the nature of injuries and the
treatment, the petitioner has been awarded a global compensation of
Rs.11,000/- under the head injury, pain and suffering, amount spent for
treatment, conveyance, attendance and other expenses. Accordingly, issue
No.2 in MVC No.763/2015 is answered.
35. Issue No.2 in MVC No.856/2015:- The petitioner of this case
viz., Syed Afsar has been examined as PW 5. In his evidence, the petitioner
says that in the accident, he suffered injuries to his left hip joint and neck of
femur and immediately, he was shifted to Victoria Hospital, Bengalur
wherein he was treated as an in-patient from 04.01.2015 to 11.01.2015. In
order to substantiate his case regarding the injuries suffered by him,
treatment administered and the amount spent for treatment and the disability
said to have been suffered by him, the petitioner has filed Ex.P.32 Wound
Certificate issued by Victoria Hospital, Bengaluru, perusal of which clearly
reveals that the petitioner has suffered the following injuries:
1) Not able to lift left lower limb
36. The doctor who issued the above wound certificate has opined the
above injuries as grievous in nature. Apart from the said Wound Certificate,
the petitioner has also produced the copy of the X-ray report of Chest, which
reveals fracture of right 6th rib. Further, the petitioner has produced the
Discharge Summary marked as Ex.P.33, which reveals that the petitioner has
suffered fracture superior pubic rami right and fracture acetabulum left side
undisplaced. Ex.P.33 further discloses that the petitioner was treated as
inpatient from 04.01.2015 to 11.01.2015. The petitioner has also produced
his Voters ID Card as Ex.P.34 and Medical bills, accounting to Rs.1,580/-
marked as Ex.P.35. From the perusal of the above, it can be gathered that in
the accident, the petitioner has suffered multiple fracture injuries ie.,
fracture of 6th right rib, fracture superior public rami right and fracture
acetabulum left side undisplaced and that the petitioner was treated as in-
patient from 04.01.2015 to 11.01.2015 and that he has spent an amount of
Rs.1,580/- towards treatment. The petitioner has also examined PW 9 -
Dr.B.Vishwanath, who in his evidence, stated that the petitioner having
suffered fracture of superior pubic rami on the left side of pelvis, is suffering
from 5% disability to the whole body. The percentage of disability i.e., 5%
stated by PW 9 said to have been suffered by petitioner is very negligible
and the Court has to take note of the nature of injury ie., the fracture of
superior pubic rami and fracture of acetabulum and from the Wound
Certificate Ex.P.32 also, it is clear that the petitioner was unable to lift the
left lower limb and the period of hospitalization. Thus, considering the
gravity of injuries and the nature and period of treatment, the petitioner has
been awarded a global compensation of Rs.1,50,000/- under the head injury,
pain and suffering, amount spent for treatment, conveyance, attendance and
other expenses, loss of income during laid up period. Accordingly, issue
No.2 in MVC No.856/2015 is answered.
37. Issue No.2 in MVC No.857/2015:- The petitioner of this case
viz., Babu Sherif @ Babu S., has been examined as PW 2. In his evidence,
the petitioner says that in the accident, he suffered injuries to his right leg
ankle joint and immediately, he was shifted to Victoria Hospital, Bengaluru
wherein he was treated as an in-patient from 04.01.2015 to 13.01.2015. In
order to substantiate his case regarding the injuries suffered by him,
treatment administered and the amount spent for treatment and the disability
said to have been suffered by him, the petitioner has filed Ex.P.13 Wound
Certificate issued by Victoria Hospital, Bengaluru, perusal of which clearly
reveals that the petitioner has suffered the following injuries:
1) Swelling of right ankle joint
38. The doctor who issued the above wound certificate has opined the
above injuries as grievous in nature. Apart from the said Wound Certificate,
the petitioner has also produced the Discharge Summary issued by Victoria
Hospital, Bengaluru marked as Ex.P.14, which reveals that the petitioner has
suffered "Type III B open fracture of right lateral malleolus". Ex.P.14
further discloses that the petitioner was treated as inpatient from 04.01.2015
to 13.01.2015.
39. Apart from his evidence, the petitioner has also examined PW 9 -
Dr.B.Vishwanath, Orthopedic Surgeon, Victoria Hospital, Bengaluru the
evidence of PW 9 goes to show that the petitioner has suffered Type III B
open fracture of right lateral malleoli and for that, the petitioner was treated
surgically with external fixation and he recently examined the petitioner on
23.12.2015 which revealed tenderness at right ankle, inability to squat on
floor, inability to sit crossed leg on floor, inability to kneel down, inability to
use Indian toilet, inability to climb stairs, inability to take turns and thus,
considering the restriction of movements, strength of muscle and based on
the nature of injury, duration of treatment, clinical and radiological results,
he has assessed the total permanent disability at 30.31% to the right lower
limb and 15.15% to the whole body. PW 9 further says that with the above
amount of disability, the petitioner being a mechanic, has to perform his
work with difficulty. In the cross-examination, PW 9 admits that the
external fixator was removed and in the case sheet, his avocation is
mentioned as coolie and income as Rs.600/- and he further admits that he is
not aware of his avocation and assessed the physical disability. It is elicited
from him that the condition of the petitioner has improved from the date of
discharge till assessment of disability and the fracture is united with mild
degree of mal union. It is suggested to him that he would have taken 1/3rd of
disability to whole body and not 50% and the said suggestion has been
denied by him.
40. The petitioner has also produced his Driving Licence marked as
EX.P.15, which states that the petitioner has licence to drive LMV Transport
vehicle. The said Ex.P.15 Driving Licence further reveals the age of the
petitioner as 31 years as on the date of the accident. The petitioner has also
produced Medical Bills for Rs.50,046/- which are marked as Ex.P.16. From
the perusal of the above, it can be gathered that in the accident, the petitioner
has suffered Type III B open fracture of right lateral malleoli and that the
petitioner was treated as in-patient from 04.01.2015 to 13.01.2015 and that
he has spent an amount of Rs.50,046/- towards treatment. Thus, the
petitioner has been awarded Rs.40,000/- under the head injury pain and
suffering. The petitioner has also been awarded Rs.50,046/- under the head
medical expenses and Rs.10,000/- under the head attendant, conveyance and
other miscellaneous expenses.
41. As per Ex.P.15 driving licence, the petitioner had licence to drive
LMV transport vehicles, that means, though the petitioner says that he was
working as mechanic, but Ex.P.15 shows that he was a driver and since he
was aged 31 years, his income can be taken as Rs.7,500/- per month. The
petitioner having suffered type IIIB open fracture of right lateral malleoli, he
must not have attended to his work for 3 months and hence, the petitioner
has been awarded Rs.22,500/- under the head loss of income during laid up
period.
42. PW 9 the doctor who treated the petitioner has stated that the
petitioner has suffered 30.31% permanent physical disability and 15.15%
disability to whole body and that the petitioner can discharge his duty with
little difficulty. PW 9 has assessed 50% disability to particular limb out of
total disability of 30.31% which cannot be accepted. Generally, the same
will be 1/3rd to the whole body. Such being the case, I deem it just and
proper to take 10% disability to whole body and if that be so, the petitioner
is held to be entitled to compensation under the head disability as under:-
Income of the petitioner is Rs.7,500/-, 10% of which comes to Rs.750/-
and annually it works out to Rs.9,000/- and having regard to the age of the
petitioner being 31 years, the said amount is multiplied by 16 multiplier, the
same works out to Rs.1,44,000/- to which the petitioner is entitled to under
the head loss of income on account of disability.
43. Further, the petitioner has also been awarded Rs.20,000/- under the
head loss of amenities in life, since at his young age, he suffered Type III B
open fracture of right lateral malleoli, the effects of which has to be borne by
the petitioner, though out his life.
44. Thus, the petitioner has been awarded compensation as under:-
Sl.No. Heads of compensation Amount
1. Injury, pain and suffering 40,000.00
2. Medical expenses 50,046.00
3. Attendant, conveyance and other 10,000.00
miscellaneous expenses
4. Loss of income during laid up 22,500.00
period (7500X3)
5. Loss of income on account of 1,44,000.00
disability
6. Loss of amenities in life 20,000.00
Total 2,86,546.00
45. Issue No.2 in MVC No.858 /2015:- The petitioner of this case
viz., Abdul Wajid @ Wazid Pasha has been examined as PW 6. In his
evidence, the petitioner says that in the accident, he suffered injuries to his
right chest, abdomen and left shoulder and immediately, he was shifted to
Victoria Hospital, Bengalur wherein he was treated as an in-patient from
04.01.2015 to 09.01.2015. In order to substantiate his case regarding the
injuries suffered by him, treatment administered and the amount spent for
treatment and the disability said to have been suffered by him, the petitioner
has filed Ex.P.36 Wound Certificate issued by Victoria Hospital, Bengaluru,
perusal of which clearly reveals that the petitioner has suffered the following
injuries:
1) Perineal tear present 10X5cm
2) Abrasion over right side of abdomen
3) Abrasion over left shoulder 2X2cm
46. The doctor who issued the above wound certificate has opined
the above injuries as simple in nature. Apart from the said Wound
Certificate, the petitioner has also produced the Discharge Summary marked
as Ex.P.37, which reveals that the petitioner has suffered peri anal laceration
for which primary suturing of laceration done. Ex.P.33 further discloses that
the petitioner was treated as inpatient from 04.01.2015 to 09.01.2015. The
petitioner has also produced his Voters ID Card as Ex.P.38 and Medical
bills, accounting to Rs.20,179/- marked as Ex.P.39. From the perusal of the
above, it can be gathered that in the accident, the petitioner has suffered 3
injuries and though they are simple in nature, the petitioner was treated as
in-patient from 04.01.2015 to 09.01.2015 and that he has spent an amount of
Rs.20,179/- towards treatment. The petitioner having contended that the
injuries suffered by him the accident, resulted in disability, has not examined
the doctor who treated him, and thereby, except the self serving testimony of
petitioner, there is no evidence to show that the petitioner has suffered
disability on account of accidental injuries. Thus, considering the nature of
injuries and the nature and period of treatment, the petitioner has been
awarded a global compensation of Rs.60,000/- under the head injury, pain
and suffering, amount spent for treatment, conveyance, attendance and other
expenses, loss of income during laid up period. Accordingly, issue No.2 in
MVC No.858/2015 is answered.
47. Issue No.2 in MVC No.1117/2015:- The petitioner of this case
viz., Naseer Pasha @ Malik Pasha has been examined as PW 3. In his
evidence, the petitioner says that in the accident, he suffered injuries to his
right leg and immediately, he was shifted to Victoria Hospital, Bengaluru
wherein he was treated as an in-patient from 04.01.2015 to 20.02.2015. In
order to substantiate his case regarding the injuries suffered by him,
treatment administered and the amount spent for treatment and the disability
said to have been suffered by him, the petitioner has filed Ex.P.19 Wound
Certificate issued by Victoria Hospital, Bengaluru, perusal of which clearly
reveals that the petitioner has suffered the following injuries:
1. Deformity @ swelling of right leg
2. Pelvic compression test positive
3. Swelling over left knee joint
48. The doctor who issued the above wound certificate has opined the
injury No.1 and 3 as grievous and injury N o.2 as simple in nature. Apart
from the said Wound Certificate, the petitioner has also produced the
Discharge Summary issued by Victoria Hospital, Bengaluru marked as
Ex.P.20, which reveals that the petitioner has suffered "Type III B open
fracture of right BB leg and lateral malleolus". Ex.P.20 further discloses that
the petitioner was treated as inpatient from 04.01.2015 to 20.02.2015.
49. Apart from his evidence, the petitioner has also examined PW 8 -
Dr.B.S.Ramachandra, Assistant Professor of Orthopedics at Victoria
Hospital, Bengaluru the evidence of PW 8 goes to show that the petitioner
has suffered Type III B open (compound) fracture both bones (tibia and
fibula) of right leg and lateral malleolus and for that, the petitioner was
treated surgically with closed reduction and external fixation. The petitioner
was again admitted on 24.02.2015 and discharged on 04.03.2015 for
operation of medial gastroenemius flap and peroneus brevis flap and for the
third time, the petitioner was admitted on 11.03.2015 and discharged on
30.03.2015 and during the said period, above knee amputation of right lower
limb was done. PW 8 further deposes that he recently examined the
petitioner on 23.12.2015 and on clinical examination, he found right foot,
right ankle, right leg, right knee, lower one third of right thigh are absent due
to post traumatic and the length of the amputated stump of right lower limb
is 35 cms and the petitioner walks with 2 axillary crutches support and thus,
considering the amputation of right lower limb and based on the nature of
injury, duration of treatment, clinical and radiological results, he has
assessed the permanent residual physical disability of about 80%.
50. PW 8 further deposes that the petitioner was advised to wear
artificial limb (leg) which is synthetic, fiber glass resin made, modular
imported light weight, computer assisted design cosmetically, socially,
psychologically acceptable, durable and patient friendly complications and
maintenance free and the cost of the artificial leg is about Rs.3,70,000/- and
further says that he was doing scrap business prior to the said accident and it
that is, he has 100% occupational disability.
51. In the cross-examination, PW 8 admits that he has not treated the
petitioner personally and Dr.P.K.Raju, H.Manjunath and Dr.Srinivas have
treated him and except Dr.H.Manjunath, all other doctors are still working
and he saw the petitioner only for assessment of disability. He says that he
has discussed with the doctors who have treated the petitioner since he was
in the same unit. He admits that the objects of the doctors is to save the leg
before the amputation and he volunteers that in first two admissions, made
the efforts to save the leg. It is suggested to him that the petitioner is
diabetic and the said suggestion has been denied by him. It is elicited from
him that during 3rd admission, on 26.03.2015, the leg was amputated. He
admits that the amputation is above the knee at the level of upper 2/3rd and
lower 1/3rd of the thigh ie., 16 cms above the knee. He admits that artificial
limb can be fixed. It is suggested to him that once artificial limb is fixed, he
can do the normal work and he volunteers that he can walk independently.
He admits that prosthesis was advised to improve the mobility. He admits
that he does not know personally his avocation, but the petitioner says that
he is a scrap dealer. It is suggested to him that disability which he assessed
at 80% is not correct and it is less than 80% which is denied by him. He
admits that artificial limbs are available even for lesser amount compared to
which he has mentioned in his affidavit. He admits that none of the manual
suggest for assessment of the disability of occupational and functional
disability.
52. Thus, as per the case of the petitioner, though he says that he was
working as a scrap dealer, but there is nothing on record to prove the same.
Even PW 8, the doctor has stated that he has not enquired with the petitioner
as to his avocation. Further, PW 8 assessed the disability to whole body at
about 80%, but he is not a treated doctor of petitioner and such being the
case, his evidence has to be evaluated with care and caution, since he says
that the doctors who treated him are still working, except Dr.Manjunath. In
this regard, the Counsel for the petitioners has relied upon various judgments
regarding assessment of disability in case of amputation and out of them,
judgment reported in 2014 ACJ 653 ( Sanjay Kumar Vs Ashok Kumar and
another), is relevant and applicable to the case on hand, wherein also, the
claimant, being an embroiderer, had suffered amputation of right leg above
knee and thus, considering his as a skilled worker, taken the disability at
70% to the whole body and also taken into consideration 50% increase for
future prospectus. The facts of the said case being aptly applicable to the
case on hand, in the absence of proof regarding the avocation and income of
the petitioner, considering the age of the petitioner as 41 years and by taking
his income at Rs.7,000/-, the petitioner is awarded compensation under the
head loss of income on account of disability as under:-
Income of the petitioner is taken as Rs.7,000/-, after adding 30% towards
future prospectus as per principle laiddown in Rajesh Vs. Rajbir Singh
reported in 2013 ACJ 1403, it works out to Rs.9,100/- (7000 + 2100), 70%
of which (disability) works out to Rs.6,370/- and annually, it works out to
Rs.76,440/- and by applying 14 multiplier having regard to the age of the
petitioner being 41 years, the same works out to Rs.10,70,160/-, to which the
petitioner is entitled to under the head loss of income on account of
disability.
53. Considering the fact that the petitioner has suffered type III B
compound fracture of right tibia and that he was inpatient thrice, in all for 61
days and that right leg above knee has been amputated, the petitioner has
been awarded a compensation of Rs.75,000/- under the head injury, pain and
suffering.
54. The petitioner has also produced Ex.P.25, 100 medical bills,
accounting to Rs.90,875/-. I have carefully gone through the same. Out of
them, bill at Sl.No.99 is forRs.34,355/- issued by Victoria Hospital and the
remaining bills are towards consumables. The petitioner having suffered
amputation of right leg above knee and inpatient for 61 days, it can be said
that he has incurred the amount shown in these bills. Accordingly, I award
Rs.90,875/- towards medical expenses and Rs.25,000/- under the head
attendant, conveyance and other miscellaneous expenses, since the petitioner
was inpatient for 61 days on 3 occasions.
55. The petitioner having suffered type III-B open fracture of right
lateral malleolus and suffered amputation of right leg above knee, he must
not have attended to his work for 6 months and hence, the petitioner has
been awarded Rs.42,000/- under the head loss of income during laid up
period at the rate of Rs.7,000/- per month.
56. Further, the petitioner has also been awarded Rs.50,000/- under the
head loss of amenities in life, since at his young age, he suffered Type III B
open fracture of right leg both bones and thereby right leg above knee had to
be amputated, the effects of which has to be borne by the petitioner, though
out his life.
57. PW 8 Dr.S.Ramachandra in his evidence, says that the petitioner,
since suffered amputation of right leg above knee, has been advised to wear
artificial leg of synthetic, fiber glass resin made and the cost of the leg is
around Rs.3,70,000/-. In the cross-examination, it is suggested to him that
averments made in para 7 of his affidavit as above, is imaginary one and
though the said suggestion has been denied by him, the fact remains here
that there is no estimation submitted by PW 9, though a proposal for the
same issued by Ottobock is produced and marked as Ex.P.23, but to prove
the contents of the same, the author of the same is not examined. Further,
PW 8 admits that artificial limbs are available even for lesser amount
compared to which he has mentioned in his affidavit. Hence, considering
the fact that the petitioner has suffered amputation of right leg above knee, it
is proper for him to have an artificial leg. However, the cost stated by PW 8
appears to be on higher side in all aspects. Hence, I deem it just and proper
to award Rs.1,00,000/- towards purchase of artificial leg, which shall not
carry any interest.
58. Thus, the petitioner has been awarded compensation as under:-
Sl.No. Heads of compensation Amount
1. Injury, pain and suffering 75,000.00
2. Medical expenses 90,875.00
3. Attendant, conveyance and other 25,000.00
miscellaneous expenses
4. Loss of income during laid up 42,000.00
period (7000X6)
5. Loss of income on account of 10,70,160.00
disability
6. Loss of amenities in life 50,000.00
7. Compensation towards purchase of 1,00,,000.00
artificial limb
Total 14,53,035.00
59. Issue No.2 in MVC No.1120/2015:- The petitioners in MVC
No.1120/2015 claim that they are the wife and children of the deceased
Afsar Pasha, who died on account of the injuries sustained by him in the
accident.
60. The respondent No.1 has disputed the relationship of the petitioners
with the deceased. In this regard, the petitioners have examined the first
petitioner as PW 1 and in her evidence, she has got marked Ex.P.8 to P.12
Election Identity Cards and Aadhaar Car of the petitioner and the deceased
and they reveal the relationship of the petitioners with the deceased. No
contrary evidence is adduced by respondent No.1 as against the same. Thus,
for the purpose of this case, it can be said that the petitioners are the wife
and children of deceased.
61. In a case of death, in order to arrive at the compensation to be
awarded to the petitioners, the age, avocation, income and the number of
dependants, plays vital role.
62. In the case on hand, it is pleaded by the petitioners who are the wife
and children of the deceased Afsar Pasha contends that, the deceased was
aged 55 years at the time of accident and doing scrap merchant work and
earning Rs.15,000/- per month and that he was the only earning member in
the family and he was spending his entire income for the maintenance of the
family. The petitioner No.1 in MVC 1120/2015 has been examined as PW1,
who in her evidence, reiterated the averments of the petition.
63. So far as the age of the deceased is concerned, the petitioners have
produced the Identity Card issued by the Election Commission of India,
which is marked as Ex.P.8 and if we go through the same, the date of birth
of the deceased is shown as 1.1.1962 and the accident in question has
occurred on 04.01.2015, meaning thereby, he was running 54 years at the
time of accident. In the absence of any contra evidence, the age of the
deceased at the time of his death is taken as 54 years.
64. It is the contention of the petitioners that the deceased was a scrap
merchant and getting an income of Rs.15,000/- per month. Even in the
evidence of PW 1, the said fact is reiterated. But, to substantiate the same,
except the oral testimony of PW 1, there is nothing on record. In the cross-
examination of PW 1, it is admitted that she has not produced any document
to show that her husband was earning Rs.15,000/- per month. Be that as it
may, the fact remains that the deceased being aged 54 years and having wife
with three children, must have earned some amount, by doing some other
work. Considering the cost of living during 2015, I deem it just and proper
to take the income of the deceased as Rs.7,500/- per month.
65. Apart from that, in view of the principles liaddown in the judgment
reported in 2013 ACJ 1403 (Rajesh Vs. Rajbir Singh), the Apex Court held
that even if a person is self employed, loss of future prospects has to be
taken into consideration and hence, as the deceased was aged 54 years at the
time of accident, 15%, from out of his income of Rs.7,500/- has to be taken
as loss of future prospects, which works out to Rs.1,125/- and thus the total
works out to Rs.8,625/-.
66. 1/3rd out of the total income of the deceased has to be deducted
towards the personal expenses of the deceased, had he been alive, since he
was married and having a family of 2 members, after excluding the
petitioner No.2 and 3, who are major sons of the deceased. After deducting
1/3rd from Rs.8,625/- the balance comes to Rs.5,750/- and annually it works
out to Rs.69,000/-. The same has to be multiplied by 11 multiplier, having
regard to the age of the deceased as 54 years and therefore, the total loss of
dependency works out to Rs.7,59,000/-.
67. The Apex Court, in the case reported in 2013 ACJ 5800 (Sanobanu
Nazirbhai Mirza Vs. Ahmedbad Municipal Transport Service) and also in
the recent judgment reported in AIR 2014 SUPREME COURT 706
(Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/- as compensation to
the family members (children and family members other than wife) for loss
of love and affection, deprivation of protection, social security etc., and
Rs.50,000/- as compensation to the widow of the deceased for loss of love
and affection, pains and sufferings, loss of consortium, deprivation of
protection, social security etc., and Rs.10,000/- towards cost incurred on
account of funeral and ritual expenses. In this case also, since the deceased
has left behind wife and children, I deem it proper to award Rs.1,00,000/- as
compensation to the family members (children and family members other
than wife) for loss of love and affection, deprivation of protection, social
security etc., and Rs.50,000/- as compensation to the widow of the deceased
for loss of love and affection, pains and sufferings, loss of consortium,
deprivation of protection, social security etc., and Rs.10,000/- towards cost
incurred on account of funeral and ritual expenses.
68. The petitioner though claims that they have spent huge amount for
treatment of the deceased before his death, the same is not substantiated by
production of any acceptable evidence and hence, said prayer of the
petitioners is rejected.
69.Thus the petitioners are entitled to compensation as under:-
Sl.No. Heads of Compensation Amount of
Compensation
1. Loss of dependency 7,59,000.00
2. Compensation to the family 1,00,000.00
members (children and family
members other than wife) for loss of
love and affection, deprivation of
protection, social security
3. Compensation to the widow of the 50,000.00
deceased for loss of love and
affection, pains and sufferings, loss
of consortium, deprivation of
protection, social security etc.
4. Cost incurred on account of funeral 10,000.00
and ritual expenses,
Total 9,19,000.00
So far as apportionment of the compensation amount is concerned, the
cause title to the petition as well as the documents produced by the petitioner
show that the deceased is left behind by petitioner No.1 wife, petitioner No.2
and 3 are sons, who are major and the petitioner No.4 is the daughter. Since
petitioner No.2 and 3 are the sons of the deceased and they are major, they
are entitled to compensation under the head loss of love and affection and
hence, the compensation amount has been apportioned amongst the
petitioners as under:
1) Petitioner No.1 - Wife -70% (Out of Rs.8,19,000/-)
2) Petitioner No.2 - Son -Rs.50,000/-(Out of Rs.9,19,000/-)
3) Petitioner No.3-Son - Rs.50,000/-(Out of Rs.9,19,000/-)
4) Petitioner No.4-Daughter-30% out of Rs.8,19,000/-
70. Issue No.2 in MVC No.2645/2015:- The petitioner has claimed a
compensation of Rs.2,00,000/- from the respondents. It is the case of the
petitioner that in the accident, he suffered grievous injuries. The petitioner
has been examined as PW 7 in this case. In his evidence, he has reiterated
the petition averments. In support of his case, he has produced Ex.P.40 -
Wound Certificate. It is his case that at the time of accident, he was aged 41
years and working as fabricator/welder and earning Rs.600/- per day.
71. The petitioner has produced Ex.P.40 Wound Certificate issued by
Victoria Hospital, Bengaluru perusal of which shows that on account of the
accident, the petitioner was not in a position to lift right upper limb and X
ray of chest revealed fracture of right 3rd, 4th and 5th ribs and hence, the
doctors who issued Ex.P.40 opined the above injuries as grievous in nature.
Except the Wound Certificate Ex.P.40, the petitioner has not produced any
other document to show the gravity of injuries suffered by him in the
accident. Even with regard to duration of treatment which he obtained,
disability if any on account of the same, no documents are produced by the
petitioner. Considering the same, I deem it just and proper to award
Rs.50,000/- under the head pain and suffering, treatment, conveyance,
attendance and other related expenses.
72. The respondent No.1, who is the Insurer, in all the cases, has
admitted for having issued an Insurance Policy in respect of the LGV Tempo
bearing No.KA.20/934. However, it is the contention of the respondent
No.1 that the LGV in question did not possess valid permit and route permit
on the date of the accident and the second respondent, by using the LGV
without valid permit, violated the provisions of the MV Act, so also the
terms and conditions of the policy of insurance and hence, the first
respondent is not liable to indemnify the second respondent and to pay
compensation.
73. In order to substantiate its contentions, the respondent No.1 has
examined RW 1, an official from its office and RW 1 in his evidence,
reiterated the statement of objections with regard to the Fitness Certificate
and Permit and further got marked Ex.R.1 Policy Copy, Ex.R.2 B - Register
Extract, Office copy of letter sent to insured, Postal Receipt and Returned
Postal Cover.
74. RW 1 has been cross-examined by the counsel for the petitioner,
wherein he admits that he has not signed the written statement and further
admits that after investigation, the Police have filed charge sheet against the
insured vehicle driver. He further admits that the police records does not
disclose anything about the FC. He further admits that in the IMV Report,
the IMV Inspector has mentioned that the vehicle is in good condition. He
admits that as per Ex.R.2, the FC is valid upto 17.06.2011 and the insurance
policy was issued for the period 8.6.2014 to 17.06.2015. He admits that it is
mandatory while issuing the policy in respect of commercial vehicle, to
verify the RC, FC and permit.
75. The respondent No.1 further examined an official from the office of
the Jayanagar RTO as RW 2 and in his evidence, RW 2 produced and got
marked the Authorisation Letter and B Register Extract as Ex.R.6 and 7. He
says that FC was expired on 17.06.2011 as per Ex.R.7. He admits in his
cross-examination that before inspecting the vehicle, which was involved in
the accident, they used to verify RC, FC and permit.
76. The Counsel for the respondent No.1, during the course of his
arguments, vehemently contended that the vehicle was not possessing a valid
Fitness Certificate as on the date of the accident, which is mandatory and
unless such a FC is in force, the insurer is not obliged to indemnify the
respondent No.2-Insured and in support of his contentions, relied upon the
decision reported in 2014 (2) AKR 269 (Nazeer alias Nazeer Ahmed Vs
Chandrashekar Gowda and another) in which, the High Court has held that
"As per Section 56 of the Act, a transport vehicle shall not be deemed to be
validly registered for purpose of Section 39, unless it carries a Certificate of
Fitness - Insurer not liable to pay compensation" and thus, contended that
there being breach of policy conditions, respondent No.1 is not liable to
indemnify the respondent No.2 and hence has prayed the Court to reject the
petition as against the respondent No.1.
77. As against the same, the Counsel for the petitioners, in his arguments,
taking the Court through the cross-examination of RW 1, contended that
at the time of issuance of insurance policy, it was the responsibility of the
Insurer to verify the validity or otherwise of the RC, FC and permit and
further relied upon an un reported decision of the Division Bench of our
High Court in MFA No.2955/2013(MV) (Smt.Ramanjinamma and others
Vs. United India Insurance Co., Ltd., and another) decided on 11th Day of
June'2015, wherein at Para 8, the High Court held thus "Therefore, we hold
that non-possessing of Fitness Certificate is no reason for denying
compensation to the claimants and the insurer is liable to indemnify the
award amount first and thereafter recover the same from the second
respondent/owner in accordance with law if so advised or need arises" and
contended that the responsibility of satisfying the award that may be passed
in this case, be fastened on the respondent No.1 the Insurer.
78. In this case, it is an admitted fact that as on the date of accident, the
vehicle in question did not possess a valid Fitness Certificate. Whether the
same itself is sufficient to disown the responsibility for the respondent No.1
of indemnifying the respondent No.2? is the question now arises for
consideration. In the judgment reported in 2014 (2) AKR 269 and relied
upon by the Counsel for the respondent No.1, though the Insurer is held to
be not liable to pay compensation for not possessing a Fitness Certificate,
the said judgment was rendered by a Single Judge in the year 2014, whereas,
in the unreported judgment rendered by the Division Bench in MFA
No.2955/2013(MV) decided on 11th June 2015, which is recent one, the
High Court took a different view stating that not possessing of fitness
certificate is no reason for denying compensation. Further, the Counsel for
the petitioners has relied upon a judgment reported in 2015 ACJ 2142
(Augustine V.M., Ayyappankutty and others). In this case, the question
before the Court was "Whether insurance company is entitled to take
defence of technical violation of conditions of policy in respect of non-
renewal of certificate of fitness or permit of a transport vehicle in a third
party claim?". While answering the above point in the negative, the Court
held that unless the breach was so fundamental, the Insurance Company
cannot disown its responsibility. ILR 2014 KAR 191 (Sri Rangapopa @
Rangappa Shetty Vs Jayaramaiah and another). In this case also, the Court
was dealing on an issue pertaining to non possessing of fitness certificate
and while directing the Insurance Company to pay compensation amount
awarded by the Tribunal, held that it is open for the insurer to initiate
separate proceedings and recover compensation from the owner of the
offending vehicle. Unreported judgment in MFA No.10009/2013 and
connected matters, wherein the High Court held that "The insurer having
issued the policy without verification of fitness certificate, cannot disown its
liability". Unreported Judgment in MFA No.6621/2006(MV) and connected
matters. In this case also, there was no valid fitness certificate in respect of
the vehicle. Having noticed the same, the High Court held that that cannot
be reason to deny the compensation to claimants. Hence, the principle
laiddown in the recent judgment of the Division Bench of the High Court, as
discussed above, being squarely applicable to the case on hand, it is the
respondent No.1 the Insurer, who is liable to indemnify the respondent No.2
and pay the award amount.
79. In a case reported in (2011) 4 SCC 481 : (AIR 2012 SC 100)
(Municipal Council of Delhi Vs.
Association of Victims of Uphaar Tragedy), the Supreme Court of India has
held that while awarding interest on the compensation amount, the Court has
to take into account the rate of interest of the nationalized bank and the cost
of living and thereby awarded rate of interest at 9% on the compensation.
Considering the same, in these cases also, I deem it just and proper to award
interest on compensation amount at 9% p.a.
80. Accordingly, issue No.2 and 3 in all these petitions are answered. In
the result, I pass the following:-
ORDER
MVC No.763/2015 The petition is partly allowed with costs. The petitioner has been awarded compensation of Rs.11,000/- together with interest at the rate of 9% per annum from the date of petition till realization from the respondent No.1 and 2 jointly and severally. However, the respondent No.1 being the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
Entire compensation amount together with interest accrued thereon shall be released to the petitioner.
MVC No.856/2015 The petition is partly allowed with costs. The petitioner has been awarded compensation of Rs.1,50,000/- together with interest at the rate of 9% per annum from the date of petition till realization from the respondent No.1 and 2 jointly and severally. However, the respondent No.1 being the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
Out of the compensation amount so awarded in favour of the petitioner, 50% with proportionate interest is ordered to be kept in FD in the name of the petitioner for a period of 5 years. Remaining amount with proportionate interest is ordered to be paid to the petitioner. Interest on FD is payable on maturity.
MVC No.857/2015 The petition is partly allowed with costs. The petitioner has been awarded compensation of Rs.2,86,546/- together with interest at the rate of 9% per annum from the date of petition till realization from the respondent No.1 and 2 jointly and severally. However, the respondent No.1 being the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
Out of the compensation amount so awarded in favour of the petitioner, 50% with proportionate interest is ordered to be kept in FD in the name of the petitioner for a period of 5 years. Remaining amount with proportionate interest is ordered to be paid to the petitioner. Interest on FD is payable on maturity.
MVC No.858/2015 The petition is partly allowed with costs. The petitioner has been awarded compensation of Rs.60,000/- together with interest at the rate of 9% per annum from the date of petition till realization from the respondent No.1 and 2 jointly and severally. However, the respondent No.1 being the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
Out of the compensation amount so awarded in favour of the petitioner, 50% with proportionate interest is ordered to be kept in FD in the name of the petitioner for a period of 5 years. Remaining amount with proportionate interest is ordered to be paid to the petitioner. Interest on FD is payable on maturity.
MVC No.1117/2015 The petition is partly allowed with costs. The petitioner has been awarded compensation of Rs.14,53,035/- together with interest at the rate of 9% (on Rs.13,53,035/- only) per annum from the date of petition till realization from the respondent No.1 and 2 jointly and severally. However, the respondent No.1 being the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
Out of the compensation amount so awarded in favour of the petitioner, 50% with proportionate interest is ordered to be kept in FD in the name of the petitioner for a period of 5 years. Remaining amount with proportionate interest is ordered to be paid to the petitioner. Interest on FD is payable on maturity.
MVC No.1120/2015 The petition is partly allowed with costs. The petitioners have been awarded compensation of Rs.9,19,000/- together with interest at the rate of 9% per annum from the date of petition till realization from the respondent No.1 and 2 jointly and severally. However, the respondent No.1 being the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
The compensation amount has been apportioned amongst the petitioners as under:
1) Petitioner No.1 - Wife -70% (Out of Rs.8,19,000/-)
2) Petitioner No.2 - Son -Rs.50,000/-(Out of Rs.9,19,000/-)
3) Petitioner No.3-Son - Rs.50,000/-(Out of Rs.9,19,000/-)
4) Petitioner No.4-Daughter-30% out of Rs.8,19,000/-
Out of the amount so apportioned in favour of petitioner No.1 and 4, 50% each with proportionate interest is ordered to be kept in FD in the name of the respective petitioner's, for a period of 5 years in any of the scheduled bank or nationalized bank of their choice. Remaining amount with proportionate interest is ordered to be paid to them. Interest on FD is payable on maturity.
Entire compensation amount apportioned in favour of petitioner No.2 and 3 with interest is ordered to be released to them. MVC 2645/2015 The petition is partly allowed with costs. The petitioner has been awarded compensation of Rs.50,000/- together with interest at the rate of 9% per annum from the date of petition till realization from the respondent No.1 and 2 jointly and severally. However, the respondent No.1 being the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
Entire compensation amount together with interest accrued thereon shall be released to the petitioner.
Advocate's fee is fixed at Rs.1,000/- in each case. Original of the judgment shall be kept in MVC No.763/2015 and a copy of the same be retained in the remaining cases. (Dictated to the Judgment Writer, transcription thereof is revised, corrected and then pronounced by me in Open Court on 27.05.2016) (H.P.SANDESH) MEMBER, PRL.MACT ANNEXURE List of witnesses examined on behalf of the petitioners PW 1 - Zakira Banu @ Jakira PW 2 - Babu Sherif @ Babu S., PW 3 - Nazeer Pasha @ Malika Pasha PW 4 - Ashok G., PW 5 - Syed Afsar PW 6 - Abdul Wajid @ Wazid Pasha PW 7 - Aslam @ Aslam Ulla Baig PW 8 - Dr.S.Ramachandra PW 9 - Dr.B.Vishwanath PW 10 - Ramanjanappa K., List of witnesses examined for the respondents RW 1 - Raghu Margoor RW 2 - Vijayakumar List of documents marked for the petitioners Ex.P-1 : FIR Ex.P-2 : Sketch Ex.P-3 : Mahazar Ex.P-4 : Inquest report Ex.P-5 : PM report Ex.P-6 : IMV report Ex.P-7 : Chargesheet Ex.P-8 : Notarised copy of deceased election ID card (original compared) Ex.P.9 Notarised copy of my election ID card(original compared) Ex.P.10 Notarised copy of election ID card of my son(original compared) Ex.P.11 Notarised copy of Aadhaar card of my daughter (original compared) Ex.P.12 Notarised copy of Aadhaar card of my son(original compared) Ex.P-13 : Wound certificate Ex.P-14 : discharge summary Ex.P-15 : Notarised copy of DL (original compared) Ex.P-16 : Medical bills ( 26 in nos.) for Rs. 50,046/-
Ex.P.17 : 3 photographs with CD
Ex.P-18 : 2 X-rays
Ex.P-19 : Wound certificate
Ex.P-20 & 21 : discharge summary
Ex.P-22 : Notarised copy of ration card (original compared)
Ex.P-23 : Estimation letter
Ex.P.24 : 3 photographs with CD
Ex.P-25 : Medical bills ( 100 in nos.) for Rs. 90,875/-
Ex.P-26 : 58 Prescriptions
Ex.P-27 : Wound certificate
Ex.P-28 : OPD card
Ex.P-29 : Notarised copy of election ID card (original compared)
Ex.P-30 Medical bills (3 in nos.) for Rs. 407/-
Ex.P-31 : 7 Prescriptions
Ex.P-32 : Wound certificate
Ex.P-33 : discharge summary
Ex.P-34 : Notarised copy of election ID card (original compared)
Ex.P-35 Medical bills (4 in nos.) for Rs. 1,580/-
Ex.P-36 : Wound certificate
Ex.P-37 : discharge summary
Ex.P-38 : Notarised copy of election ID card (original compared)
Ex.P-39 Medical bills (7 in nos.) for Rs.20,179/-
Ex.P-40 : Wound certificate
Ex.P-41 : Notarised copy of election ID card (original compared)
Ex.P.42: OPD Slip
Ex.P.43: Discharge Summary
Ex.P.44&45: 2 Case Sheets
Ex.P.46: Recent X ray
Ex.P.47: OPD Card
Ex.P.48: Case Sheet
Ex.P.49: X-ray
Ex.P.50: OPD Book
Ex.P.51 Case Sheet
Ex.P.52: X-ray
Ex.P.53: OPD Book
Ex.P.54: Case Sheet
Ex.P.55: X-ray
Ex.P.56: B Register Extract
Ex.P.57: Permit
List of documents marked for the respondents Ex.R.1 - Policy Copy Ex.R.2 - B Register Extract Ex.R.3 - Office copy of the Letter sent to insured Ex.R.4 - Postal Receipt Ex.R.5 - Returned postal cover Ex.R.6 - Authorisation Letter Ex.R.7 - B register extract (H.P.SANDESH) MEMBER, PRL.MACT