Bangalore District Court
Sri. Muni Ajjappa vs National Insurance Co.Ltd on 18 December, 2020
BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL, XXII ADDITIONAL JUDGE OF SMALL CAUSE
COURT AND A.C.M.M. AT BENGALURU.
PRESENT: Sri. Rachoti Mahagundappa Shirur,
B.A., LL.M., P.G.D. in F.D.R.
XXII Addl.Small Causes Judge,
A.C.M.M and Member, M.A.C.T, Bengaluru.
DATED: This the 18th day of December, 2020.
M.V.C.No.4376/2018
Petitioner: Sri. Muni Ajjappa,
S/o Nanjappa,
Aged about 56 yeas,
R/at No.06,
Balenahalli village,
Bendiganahalli post,
Hosakote Taluk,
Bangalore Rural District.
(Rep. By : Sri.P. Suresh
Advocate, Bengaluru).
-Versus-
Respondents: 1. National Insurance Co.Ltd.,
Bangalore Regional Office,
No.144, Shubram Complex,
2nd Floor, M.G.Road,
Bangalore-560001.
(Rept.by its Incharge Manager)
Insurer of the vehicle bearing
No.KA-53-C-0321
Policy No.55270031176360067342
Validity : 31.08.2017 to 30.08.2018.
2. Sri. Muniraju. K,
S/o Kyathappa,
Major in age,
R/at Sarkanut village,
2 SCCH-24
MVC No.4376/2018
Near Ganesha Temple,
Hosakote Taluk,
Nelavagilu,
Bangalore Rural District.
(Owner of the vehicle)
(Res.No.1 by : Sri. G.V. Jagadeesha,
Advocate, Bengaluru
Res.No.2 by : Ex parte).
(RACHOTI MAHAGUNDAPPA SHIRUR)
XXII Addl. Small Causes Judge and A.C.M.M,
Member, M.A.C.T., Bangalore.
JUDGMENT
The petitioner filed this petition under Section 166 of the Motor Vehicles Act (herein after referred as M.V.Act) claiming the compensation of Rs.14,00,000/- (Rupees Fourteen Lakhs Only) on account of the injuries sustained by him in the Road Traffic Accident.
2. Brief facts of the case are as under: That on 20.07.2018 at about 8.30 a.m. the petitioner was going by walk at the left side of the foot path near Nandagudi -Bylanarasapura road, Nandagudi, Hosakote Taluk, Bengaluru District at that time all of a sudden the driver of Tata Ace Magic vehicle bearing No.KA-53-C-0321 drove the same in high speed, rash and negligent manner and dashed to petitioner from behind and dragged him for some distance. Due to the said impact the petitioner sustained multiple grievous injuries.
3. After accident petitioner was shifted to Government Hospital, Nandagudi wherein after first aid treatment he was shifted to Srinivasa 3 SCCH-24 MVC No.4376/2018 Speciality Hospital, Hosakote and treated as an inpatient from 20.07.2018 to 01.08.2018 and he undergone several investigations and he was discharged with an advice to complete bed rest and regular follow up treatment. He has spent Rs.2,60,000/- towards his treatment, food and nourishment, conveyance and other incidental charges.
4. The petitioner stated that at the time of accident he was aged about 56 years and earning Rs.18,000/- per month by doing Mason. Due to the accidental injuries he is unable to do his work thereby he sustained loss of income from the date of accident. Prior to the accident he was hale and healthy and due to the accidental injuries he is unable to walk, run, stand, sit and unable to lift weight. He always depends on other for his regular and day-to-day activities and he engaged an attendant during his treatment. Petitioner submitted that the accident occurred due to rash and negligent driving of the driver of the Tata Ace Magic. The jurisdictional Nandagudi Police registered the case in their Crime No.165/2018 against the said driver for the offence punishable under Sections 279 and 337 of Indian Penal Code(hereinafter referred as I.P.C). The respondent No.1 and 2 being the insurance company and owner of the offending Tata Ace Magic are jointly and severally liable to pay the compensation to petitioner. Hence, this petition.
5. After service of notice the Respondent No.1- Insurance Company appeared through it's counsel and denied the contents of petition by filing its written statement of objections. In spite of service 4 SCCH-24 MVC No.4376/2018 of notice Respondent No.2 remained absent. Hence he is placed ex parte.
6. Respondent No.1 contended that the petition is not maintainable either in law or on facts and same is liable to be dismissed. The respondent No.1 contended that Tata Ace is not involved in the accident and this respondent is not a proper and necessary party to the above case and petition against it to be dismissed on the ground of mis joinder of party. This respondent No.1 denied the rash and negligent driving of the driver of Tata Ace and further contended that the petitioner was crossing the road without following the traffic rules and regulations and contributory negligence cannot be ruled out. The respondent No.1 denied the accident, injuries, avocation, income of the petitioner and the compensation claimed by the petitioner is highly excessive and exorbitant. The respondent No.1 contended that at the time of accident the driver of the Tata Ace is not having valid and effective driving licence and vehicle is not having permit and Fitness Certificate to drive the same on road. The police authorities have failed to intimate the respondent about accident and violated Section 158(6) of M.V.Act and judgments of Hon'ble Apex Court. Under these circumstances Respondent No.1 prayed to dismiss the petition.
7. On the basis of the above pleadings of both parties my predecessor in office framed the following :
5 SCCH-24 MVC No.4376/2018 ISSUES
1. Whether the Petitioner proves that, he has sustained grievous injuries in the road traffic accident that occurred on 20.07.2018 at about
8.30 a.m, near Nandagudi - Bylanarasapura road, Nandagudi, Hosakote Taluk, Bengaluru Rural District, due to the rash and negligent driving of the Tata Ace Magic bearing Reg.No.KA-53-C-
0321 by its driver as alleged ?
2. Whether the Petitioner is entitled for compensation as claimed ? If so, to what amount and from whom ?
3. What order or Award ?
8. In order to prove the case Petitioner got examined himself as P.W.1 and got marked 13 documents as per Ex.P.1 to Ex.P.13. He has also got examined two witnesses i.e., Medical Records Incharge Officer as PW.2 and got marked 3 documents as per Ex.P.14 to Ex.P.16 and doctor by name Dr. Chidanand K.J.C as PW.3 and got marked 2 documents as per Ex.P.17 and Ex.P.18. Respondents have not lead any evidence.
9. I heard the arguments of both side.
10. My findings on the above said Issues are as under:
Issue No. 1: In the Affirmative.
Issue No. 2: In the Partly Affirmative. Issue No. 3: As per final Order for the following:
6 SCCH-24 MVC No.4376/2018 REASONS
11. Issue No.1 : In the present case petitioner contended that on 20.07.2018 at about 8.30 a.m. petitioner was going by walk at the left side of the footpath near Nandagudi-Bylanarasapura road, Nandagudi, Hosakote Taluk, Bengaluru District at that time suddenly the driver of Tata Ace Magic vehicle bearing No.KA-53-C-0321 drove the same in high speed, rash and negligent manner endangering to human life and dashed to him from his behind and knocked down and dragged him for some distance. Due to the said impact petitioner sustained multiple grievous injuries.
11(a). After accident petitioner was shifted to Government Hospital, Nandagudi wherein after first aid treatment he was shifted to Srinivasa Speciality Hospital, Hosakote and treated as an inpatient from 20.07.2018 to 01.08.2018 and he undergone several investigations and he was discharged with an advice to complete bed rest and regular follow up treatment. He has spent Rs.2,60,000/- towards his treatment, food and nourishment, conveyance and other incidental charges.
11(b). The petitioner stated that at the time of accident he was aged about 56 years and earning Rs.18,000/- per month by doing Mason. Due to the accidental injuries he is unable to do his work thereby he sustained loss of income from the date of accident. Prior to the accident he was hale and healthy and due to the accidental injuries he is unable to walk, run, stand, sit and unable to lift weight. He also contended that the accident occurred due to negligent act of driver of 7 SCCH-24 MVC No.4376/2018 Tata Ace Magic. He always depends on other for his regular and day- to-day activities and he engaged an attendant during his treatment. Hence he claimed Rs.14,00,000/- as compensation.
11(c). On the other hand respondent No.1 contended that Tata Ace is not involved in the accident and this respondent is not a proper and necessary party to the above case and petition against it to be dismissed on the ground of mis joinder of parties. This respondent No.1 denied the rash and negligent driving of the driver of Tata Ace and further contended that the petitioner was crossing the road without following the traffic rules and regulations and contributory negligence cannot be ruled out. The respondent No.1 denied the accident, injuries, avocation, income of the petitioner and the compensation claimed by the petitioner is highly excessive and exorbitant. The respondent No.1 contended that at the time of accident the driver of the Tata Ace is not having valid and effective driving licence and vehicle is not having permit and Fitness Certificate to drive the same on road and sought for dismissal of petition.
11(d). Hence petitioner in order to prove his case he himself examined as PW.1 and got marked Ex.P.1-Copy of First Information Report, Ex.P.2-Copy of First Information Statement, Ex.P.3-Copy of Spot Mahazar, Ex.P.4-Copy of Vehicle Seizure Mahazar, Ex.P.5-Copy of Motor Vehicles Accident Report, Ex.P.6-Notice issued under Section 133 of M.V.Act, Ex.P.7-Reply to notice, Ex.P.8-Copy of Charge sheet, Ex.P.9-Copy of Wound certificate, Ex.P.10-Discharge summary and 8 SCCH-24 MVC No.4376/2018 Ex.P.11 to Ex.P.13, Ex.P.13(a)-Medical bills, prescriptions, Photographs and CD.
11(e). Petitioner examined Devaraju. M who is Manager and Medical Records incharge officer of Srinivasa Speciality Hospital as PW.2. He filed affidavit in lieu of his examination in chief and he is treated as PW.2 and got marked Ex.P.14-Authorisation Letter, Ex.P.15- Copy of MLC Register Extract, Ex.P.16-Inpatient case sheet.
11(f). Petitioner examined Dr. Chidananda, Orthopaedic Surgeon of Sanjay Gandhi Institute of Trauma and Orthopaedics, Bengaluru as PW.3. He filed affidavit in lieu of his examination in chief and he is treated as PW.3 and got marked Ex.P.17-OPD Book and Ex.P.18-Xray films(3 in numbers).
11(g). Advocate for respondent No.1 cross-examined the PW.1 to 3 and denied their entire examination of chief. P.W-1 to 3 denied all the suggestions and defences of respondent No.1.
11(h). This Tribunal granted sufficient opportunity to the Respondent No.1 to lead its evidence but even then respondent No.1 has not lead his evidence and evidence of respondent No.1 is taken as nil.
11(i). On the basis of petition, written statement of objections, evidence and arguments of both side this Tribunal culled out some points and they are taken one by one, viz., 9 SCCH-24 MVC No.4376/2018
12. The delay in registering the First Information Report:
Respondent No.1 argued that there was a two days delay in lodging the First Information Statement and registering the First Information Report. It is natural behavior and conduct of human being whenever accident occurs first he or persons gathered at the spot try to shift the injured person to the hospital to save his life rather than rushing to the police station to file First Information Statement and comply the provisions of law.
12(a). In the present case as per Ex.P.2-First Information Statement accident took place on 20.07.2018 at 8.30 a.m. and Ex.P1- First Information Report registered on 22.07.2018 at 4.30 p.m. Looking at the contents of Ex.P-2-First Information Statement it is clear that first informer- Channakeshava who is son of petitioner engaged in the hospital to look after his father i.e., the petitioner. Hence the first informer specifically stated the reasons for delay in lodging ExP.2 First Information Statement in it.
12(b). I went through the decision of Karan Singh V/s Anshuman and others, 2010 ACJ 736 (MP) wherein Hon'ble High Court held that:
"Motor Vehicles Act, 1988 Section 166-Claim application- Maintainability of -F.I.R.- Delay of- Contention that F.I.R. was lodged after a delay of 4 months- Evidence on record that immediately after the accident when claimant was brought to hospital, intimation was given by the hospital authorities and also by the driver to the police station- Whether claim application is maintainable - Held: yes; claim petition 10 SCCH-24 MVC No.4376/2018 cannot be rejected on the ground that F.I.R was lodged after inordinate delay."
12(c). I also went through the decision of Ravi V/s Badrinarayan and others, (2011) 4 SCC 693 : AIR 2011 SC 1226 wherein it is held that:
"(A) Motor Vehicles Act (59 of 1988), Ss.140, 166-
Criminal P.C.(2 of 1974) S.154-Claim petition - Delay in lodging FIR- Effect- Victim child aged 8 years suffered grievous injuries- Father of child was not aware of niceties of law and it was more important for him to get his child treated first- Owner of vehicle made categorical admission that he was aware of accident caused by his driver on same day- In such case, delay in lodging FIR would not be fatal and claim petition need not be dismissed on that ground."
12(d). Hence, in view of ratio laid down in the above decisions and looking at the facts and circumstances of the case the contention of the respondent No.1 that there was delay in lodging the First Information Statement and registering the First Information Report because of which the petition is liable to be dismissed are not acceptable.
13. Is Tata Ace Magic bearing Reg.No.KA-53-C-0321 involved in the accident: Respondent No.1 specifically raised the contention in his written statement of objections that the said Tata Ace Magic has not caused the accident and it is not involved in the accident. In order to prove the said contention respondent No.1 best witnesses are the driver and owner of the said Tata Ace magic, Spot 11 SCCH-24 MVC No.4376/2018 and vehicle seizure mahazar witnesses i.e., Ex.P.3 and Ex.P.4, eye witnesses or Investigating Officer. Hence, the respondent No.1 in order to prove the above contention he has not brought any of the material evidence on record and discharged his burden of proof as per Sections 101 and 102 of Indian Evidence Act, 1872.
13(a). I went through the Ex.P.1-First Information Report, Ex.P.2-First Information Statement, Ex.P.3-Spot Mahazar, Ex.P.4- Vehicle Seizure Panchanama, Ex.P.5-Motor Vehicles Accident Report and Ex.P.6-Notice under Section 133 of M.V. Act, Ex.P.7- Reply to the notice under Section 133 of M.V. Act, Ex.P.8-Charge Sheet wherein it is specifically mentioned that Tata Ace Magic vehicle bearing No.KA- 53-C-0321 is involved in the accident and it caused the accident. Hence, the police officials who are independent and the State agency had conducted the investigation and filed the Charge Sheet against the driver of the said Tata Ace Magic stating that it caused the accident and it involved in the accident. Hence, if really the said Tata Ace Magic has not caused the accident and it is not involved in the accident nothing prevented the respondent No.1 to approach Hon'ble High Court of Karnataka to quash the First Information Report and the Charge Sheet. Hence looking at all these facts and Ex.P.1 to Ex.P.8 and the evidence of petitioner it is clear that the said Tata Ace Magic is involved in the accident. I went through the decision of Bajaj Allianz General Insurance Company V/s Smt. Lakshmamma and others, MFA No.7493/2007 dated 25.09.2007 and Smt. Rukmani Sundra Rajan V/s Smt. Usha Srihari and others, MFA No.5335/2004 dated 12 SCCH-24 MVC No.4376/2018 17.02.2010 of Hon'ble High Court of Karnataka. I also went through the decision in Kusum and others V/s Sagbir and others, (2015) 3 SCC 646 : 2011 SAR (Civil) 319, wherein Hon'ble Supreme Court of India referred the Bimala Devi and others V/s Himachal Road Transport Corporation and others, (2009) 13 SCC 530 and in all these decisions Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka observed that when Charge Sheet is filed against the driver of the vehicle and owner of the vehicle has not denied the accident, registration of First Information Report and same is not questioned. Under such circumstances the contention of the Insurance Company that vehicle is not involved and petitioner and owner of the vehicle colluded and filed the claim petition cannot be accepted. It is also important to note that petitioner has to prove involvement of the vehicle and the accident on preponderance of probability and not beyond reasonable doubt. Hence in the present case looking at and perusing all the evidence of petitioner he proved the fact of involvement of said Tata Ace Magic in the accident. Hence under such circumstances the contention and arguments of the respondent No.1 have withered away.
14. Negligence: Petitioner in his petition and examination in chief specifically stated that on 20.07.2018 at about 8.30 a.m. he was going by walk at the left side of the footpath near Nandagudi
-Bylanarasapura road, Nandagudi, Hosakote Taluk, Bengaluru District at that time suddenly the driver of Tata Ace Magic vehicle bearing 13 SCCH-24 MVC No.4376/2018 No.KA-53-C-0321 drove the same in high speed, rash and negligent manner endangering to human life and dashed to him from behind and dragged him for some distance. Due to the said impact he sustained multiple grievous injuries. Here petitioner produced Ex.P.1- First Information Report, Ex.P.2-First Information Statement, Ex.P.3-Spot Mahazar, Ex.P.4-Vehicle Seizure Mahazar, Ex.P.5-Motor Vehicles Accident Report and Ex.P.8-Charge sheet in which it is specifically mentioned that because of rash and negligent driving of the said Tata Ace by its driver accident occurred and petitioner sustained injuries in the said accident. Here though respondent No.1 cross examined the P.W.1 and took the contention that it is not because of rash and negligent driving of Tata Ace Magic by its driver the accident occurred but the same was denied by the P.W.1 and nothing brought on record to substantiate the contention of the respondent No.1. It is also important note that the best person to prove the contention of respondent No.1 is the driver of the said Tata Ace Magic but he is not examined. Hence in the present case the petitioner has to prove the negligent act of the driver of the Tata Ace Magic. Hence, petitioner through his oral and the said documentary evidence proved the fact that the driver of the said Tata Ace Magic drove it in rash and negligent manner and dashed to him and knocked down and caused him accident. Hence, under these circumstances the contentions and arguments of respondent No.1 are not acceptable. The Hon'ble High Court of Delhi in National Insurance Company Ltd V/s Pushpa Rana and others, 2009 ACJ 287 held that FIR, Charge sheet, Recovery memo and IMV Report can 14 SCCH-24 MVC No.4376/2018 be the basis of determining the negligence of the driver and the same is reproduced hereunder.
"12. The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the Judgment of the Hon'ble Supreme Court in Oriental Insurance Co.Ltd. v. Meena Variyal, 2007(5) SCALE
269. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (i) certified copy of the criminal record of criminal case in FIR No. 955/2004, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304-A, IPC against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
14(a). I also went through Sunita and others V/s Rajasthan State Road Transport Corporation and another, Civil Appeal No.1665/2019 (arising out of SLP (Civil) No.33757 of 2018) dated 14.09.2019 : (2019) SCC OnLine SC 195 at para No.21 Hon'ble 15 SCCH-24 MVC No.4376/2018 Supreme Court of India by citing its earlier decisions observed as under :
"(2018) 5 SCC 656 "22. The question is: Whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla Devi noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paras 1115, the Court observed thus: (SCC pp. 53334) "11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a postmortem report visàvis the averments made in a claim petition."
16 SCCH-24 MVC No.4376/2018 14(b). Hon'ble Supreme Court of India in the supra case at para No.22 observed as under :
"22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases."
14(c). I also went through The New India Assurance Co. Ltd vs Pazhaniammal, 2012 ACJ 1370 wherein Hon'ble High Court of Kerala held that,
7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal 17 SCCH-24 MVC No.4376/2018 finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures.
8. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of 18 SCCH-24 MVC No.4376/2018 negligence must be decided on the other evidence, ignoring the charge sheet.
14(d). Here respondent No.1 also contended that petitioner sustained injuries at the time of crossing the road without following the traffic rules and regulations and the contributory negligence cannot be ruled out under the circumstances. But, respondent No.1 to substantiate this fact he has not put any questions to the P.W.1 in cross- examination or brought any of the material evidence on record. It is important to note that at Ex.P.1-First Information Report, Ex.P.2-First Information Statement, Ex.P.3-Spot Mahazar, Ex.P.4-Vehicle Seizure Panchanama and Ex.P.8-Charge sheet it is specifically mentioned that petitioner sustained injuries. Hence, to contradict the Ex.P.1-First Information Report, Ex.P.2 First Information Statement, Ex.P.3-Spot Mahazar, Ex.P.4-Vehicle Seizure Panchanama and Ex.P.8-Charge sheet respondent No.1 has not brought any evidence on record. Hence looking at all these facts it is clear that petitioner sustained injuries due to rash and negligent act of the driver of the said Tata Ace Magic. Under these circumstances the evidence of P.W.1 coupled with Ex.P.1 to Ex.P.4 and Ex.P.8 establishes that the accident occurred solely due to rash and negligent driving of the Tata Ace Magic bearing registration No.KA-53-C-0321 by its driver. Hence the ratio laid down in the above cases are aptly applicable to the present facts of the case. Hence in view of above stated facts and evidence it is clear that in the present case also the Charge Sheet filed against the driver of said Tata Ace Magic and in order to disbelieve the police documents absolutely there 19 SCCH-24 MVC No.4376/2018 are no materials on records. Hence petitioner proved the negligent act of the driver of the Tata Ace Magic.
15. Contributory Negligence : Respondent No.1 in his written statement and arguments stated that the petitioner was crossing the road without following the traffic rules and regulations therefore the contributory negligence cannot be ruled out under the circumstances. Here it is well established principle law that the person who asserts the contributory negligence the burden to prove it is on him. In the present case the respondent No.1 though took the defence that petitioner also contributed for the occurrence of the accident. But in the present case respondent No.1 has not brought any iota of evidence to prove the same.
16. Mis joinder of party: Respondent No.1 in his written statement of objections and arguments stated that Tata Ace bearing No.KA-53-C-0321 is not involved in the accident because of which respondent No.1 is not a proper and necessary party to the present petition and it suffers from mis-joinder of party and sought for dismissal of the petition. In the present case as stated and discussed above the accident occurred due to rash and negligent driving of driver of the Tata Ace Magic. Hence in the Charge Sheet also it is made clear that the accident occurred due to rash and negligent driving of the driver of the said Tata Ace Magic. Hence under such circumstances as per Section 20(c), Order 1 Rules 1(a) and 3(a) of Code of Civil Procedure, 1908 (hereinafter referred as C.P.C.) the cause of action to file the present petition arose against the owner and the insurance 20 SCCH-24 MVC No.4376/2018 company of the said Tata Ace Magic. Accordingly petitioner filed this petition against the respondent No.1 and 2 who are insurance company and owner of the said Tata Ace Magic. Hence under such circumstances the petition is not suffering from mis joinder of necessary parties. Hence under such circumstances the contention and arguments of the respondent No.1 are not acceptable as to the mis joinder of parties. Hence for the above stated facts, evidence and reasons I answer Issue No.1 in the Affirmative.
17. ISSUE No.2: Here before ascertaining the percentage of disability and quantum of compensation to the petitioner it is just and necessary to go through the some of the judgments of Hon'ble Supreme Court of India wherein Hon'ble Supreme Court of India laid down certain guidelines and enumerated certain principles for ascertaining just compensation. I went through Sanjay Batham vs Munnalal Parihar and Others, (2011) 10 SCC 665 wherein it is held that :
"8. In R. D. Hattangadi v. Pest Control (India) Private Limited (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) 1 All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money;
21 SCCH-24 MVC No.4376/2018 whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
In the same case, the Court further observed:
(R. D. Hattangadi case para 12) "In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards."
9. In Nizam's Institute of Medical Sciences v.
Prasanth S. Dhananka (2009) 6 SCC 1, the three- Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation 22 SCCH-24 MVC No.4376/2018 awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. (emphasis supplied)"
17(a). I also went through Sanjay Kumar vs Ashok Kumar and Another, (2014) 5 SCC 330 wherein Hon'ble Supreme Court of India at Para No.12 observed that:
"12. Further, in the case of Raj Kumar v. Ajay Kumar & Another, (2011) 1 SCC 343, this Court has succinctly explained the guidelines and heads for awarding compensation in cases of disability due to a motor accident. The relevant paragraphs are extracted below:
"6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, 23 SCCH-24 MVC No.4376/2018 transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and
(iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses--Item (iii)--
24 SCCH-24 MVC No.4376/2018 depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages--Items (iv),
(v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item
(ii)(a)."
17(b). I also went through Kajal vs Jagdish Chand and others, (2020) 4 SCC 413 wherein Hon'ble Supreme Court of India echoed the above principles and guidelines. Hence keeping in view the ratio, principles and guidelines laid down by the Hon'ble Supreme Court of India in the above cases lets examine the facts and evidence of the present case in order to determine the just compensation to the petitioner.
18. Whether failure to give information of accident to the insurance company by the police would exempt the insurance company from payment of compensation ? : Respondent No.1 in his written statement of objections and arguments stated that police had not furnished information about the accident and thereby violated the directions of Hon'ble Supreme Court of India. Section 158(6) of M.V. Act imposes duty on the police to inform about the accident. If police have not given the information then it is violation of duty imposed on the police under the said Section. But that itself is not a ground to the 25 SCCH-24 MVC No.4376/2018 respondent No.1 claiming exemption from payment of compensation. More so Sections 147 and 149 of the M.V. Act do not state specifically that on violation of Section 158(6) of M.V. Act by the police the insurance company is exempted from payment of compensation to the victim of the accident. Here contract of insurance is existed between respondent No.1 and 2 merely that police have not given information about the accident that itself will not absolve the respondent No.1 from payment of compensation in cases of accident. Hence under such circumstances the contention of the respondent No.1 would not survive for consideration.
19. Is treated doctor should assess the disability ? : Advocate for respondent No.1 argued that PW.3 doctor Chidananda has not treated the petitioner and he is not the competent person to assess the disability of petitioner and to give evidence. Here every doctor who completed M.B.B.S. is having knowledge and competent to assess the disability and give evidence. I went through Syed Amanulla vs B.K. Venkatesh (Rajanna) and another, Miscellaneous First Appeal No. 5156 Of 2001, dated 04-04-2005 : 2006(2) KCCR 976 in which Hon'ble High Court of Karnataka held that :
"6. The argument that the doctor who has issued disability certificate is not an Orthopedic Orthopedic Surgeon is an untenable contention. The doctor with M.B.B.S. qualification will have necessary basic knowledge of Orthopedics and would be competent to issue disability certificate according to the settled medical norms.
7. The argument that the doctor who has issued the disability certificate has not treated the petitioner, 26 SCCH-24 MVC No.4376/2018 therefore he not competent to issue the certificate is a flawed logic. If such dangerous logic is upheld, it can very well apply to an appellate lawyer who argues an appeal without conducting the case in the trial court. The assessment of disability is done by the doctor as per the physical status of a person as on the date of examination. The doctor might not have treated the patient, but it cannot be said that medically the doctor will not be competent to assess the disability."
19(a). I also went through Nanu vs Ghouse Mohinuddin And Anr. 2006 ACJ 1885 in which Hon'ble High Court of Andhra Pradesh held that :
"20. Also, the learned Counsel for the applicant relied upon Charan Sing vs G. Vittal Reddy, (2003) 1998 FLR 933(AP) (DB), delivered, inter alia, interpreting Section 4(1) (c) of the said Enactment of 1923, and, inter alia, postulating, that, any qualified Doctor can assess the loss of disability, vis-a-vis, the earning capacity, and that, it is not necessary, that he should be the same Doctor, who treated the injured." 19(b). Hence in view of ratio laid down in the above cases the contentions and arguments of advocate for respondent No.1 is not acceptable and same are rejected.
20. Age of petitioner : Here petitioner in his petition and also in his evidence stated that he is of 56 years at the time of accident. PW.3 also in his examination in chief and cross examination stated that petitioner is of 55 years. Here petitioner in order to show that as on the date of accident he is of 56 years old or 55 years he has not produced any material evidence on record. Here on perusal of Ex.P.9-Wound Certificate, Ex.P.10-Discharge card, Ex.P.11-Medical bills at Sl.No.2 27 SCCH-24 MVC No.4376/2018 Inpatient bill, Ex.P.15-MLC Register Extract, Ex.P.16-Inpatient case sheet, admission record, Nurse's Record, Activity record for billing, consent form, Laboratory Reports mentioned the age of petitioner as 62 years. At Ex.P.16-Inpatient Case sheet NCT Thorax report age of petitioner mentioned as 55 years. Hence looking at Ex.P.9 to Ex.P.11, Ex.P.15 and Ex.P.16 I am of the considered opinion that the age of petitioner is 62 years as on the date of accident. It is also important to note that PW.3 in his examination in chief and cross examination stated that petitioner is of 55 years old but PW.3 in his examination in chief and also in his cross examination no where stated that on what basis he came to the conclusion that the age of petitioner is of 55 years old. Hence under such circumstances looking at the above said documents it can be concluded that as on the date of accident the age of petitioner is of 62 years and same is taken into consideration for assessment of percentage of disability and multiplier.
21. Income : Here petitioner in his petition and also in his evidence stated that he is a mason and by doing it he is earning Rs.18,000/- per month. But petitioner in order to show that he is a mason and earning Rs.18,000/- per month he has not produced any of the material evidence on record. PW.1 also in his cross-examination admitted that he has not produced any documents to show his avocation and earning. Here looking at Ex.P.1-First Information Report the occupation of petitioner is mentioned as Labourer. At Ex.P.2-First Information Statement it is mentioned that petitioner is a mason. Hence petitioner in order to show that by doing Mason work 28 SCCH-24 MVC No.4376/2018 he is earning Rs.18,000/- per month he has not produced any material evidence on record. Hence at Ex.P.1 and Ex.P.2 mentioned that petitioner is a labourer and Mason respectively. Hence under such circumstances looking at the age of petitioner and taking into judicial note of income of labourer and also Mason if I taken the notional income of Rs.9,000/- per month as income of the petitioner then it meets the ends of justice at both the ends. Hence I considered and taken the notional income of petitioner to the tune of Rs.9,000/- per month for determination of compensation.
22. Multipler : As this Tribunal come to the conclusion that as on the date of accident petitioner is of 62 years old. I went through Smt. Sarala Verma and others V/s Delthi Transport Corporation and another, (2009) 6 SCC 121 in which Hon'ble Supreme Court of India at para No.42 held as under :
"42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
22(a). Hence as per said judgment if the deceased or injured person is in between 61 and 65 years appropriate multiplier is "7". The 29 SCCH-24 MVC No.4376/2018 ratio as to multiplier in the above case is approved by the Hon'ble Supreme Court of India in its subsequent larger bench decision in National Insurance Company Limited Vs. Pranay Sethi and Others, (2017) 16 SCC 680. Hence in the present case also as on the date of accident petitioner is of 62 years old and the appropriate multiplier which this Tribunal has to take in to consideration for the calculation of compensation is "7". This Tribunal determined the notional income of petitioner as Rs.9,000/- per month. Hence in order to ascertain the loss of income to the petitioner on the basis of disability this Tribunal has to ascertain the percentage of disability and then by applying the said multiplier and taking into consideration of income of the petitioner has to award compensation to the petitioner.
23. Pain and sufferings : Petitioner in his petition and evidence specifically stated that because of accident he suffered injuries and took treatment as in patient at Srinivasa Speciality Hospital from 20.07.2018 to 01.08.2018. In support of his contention P.W.1 produced Ex.P.9-Wound Certificate, Ex.P.10-Discharge Card, Ex.P.15- Copy of MLC Register Extract and Ex.P.16-Inpatient case sheet. In this case on going through these documents it is clear that in the accident the Petitioner has sustained tenderness over right side chest, tenderness over bilateral clavicle, abrasion over left lower leg and over left thigh. At Ex.P.16-NCT Thorax report dated 20.07.2018 it is mentioned that Comminuted fracture of junction of proximal one third and distal two thirds of the shaft of bilateral clavicles with displaced fracture fragments. Mildly displaced fractures of postero lateral aspect of right 30 SCCH-24 MVC No.4376/2018 first, sixth, seventh, eighth, ninth ribs; antero lateral aspect of the right second fourth, fifth, sixth, seventh ribs ; segmental frature of antero lateral aspect of right third rib, antero lateral aspect of the left first rib, mildly displaced fracture of left third, fourth, fifth and sixth ribs. Anterior wedge compression of L2 vertebral body. Mildly displaced fractures of spinious proceesses of T2, T3m, T4, T5, T6, T7, T8 vertebrae. Midly displaced fracture of left transverse process of L1, L2, L4 vertebrae and bilateral transbverse processes of L3 vertebra. Mild soft tissue swelling is noted overlying the above described fractures. Hence for all these injuries petitioner has taken the treatment at said hospital from 20.07.2018 to 01.08.2018. Hence petitioner suffered physical and mental pain for all these injuries. Hence any amount of compensation would not compensate his mental and physical pain and sufferings. But at least it minimizes his mental suffering that he suffered injuries and suffered pain. Hence under such circumstances by considering injuries sustained by the Petitioner, treatment taken by him and hospitalization I am of the opinion that it is reasonable to award Rupees 50,000/- under the head of pain and suffering then it would meet the ends of justice at the both ends.
24. Special diet, Conveyance, attendant and other incidental charges : P.W.1 stated that he has spent Rupees 30,000/- towards food and nourishment and Rs.30,000/- towards conveyance expenses. In the accident petitioner sustained injuries and also fractures as stated above. Hence he took treatment for the same. But petitioner though stated that he spent Rs.30,000/- for food and nourishment and 31 SCCH-24 MVC No.4376/2018 Rs.30,000/- for conveyance but he has not produced any evidence to show that he spent total Rs.60,000/- for food, nourishment and conveyance. However petitioner has suffered injuries and took treatment and to overcome from his injuries and to improve his health definitely he had made some expenses. Hence looking at the injuries and fractures which he suffered and period of treatment taken by him as a inpatient in the hospital and also keeping in view his age and at the same time he might have spent some money for his conveyance and his attendant if Rupees 15,000/- is awarded under the head of special diet, nourishment, attendant, conveyance and other incidental charges then it meets the ends of justice at both the ends and accordingly I award Rs.15,000/- under the said head to the petitioner.
25. Medical expenses: P.W.1 stated that he spent Rs.2,00,000/- for his medical expenses. In support of his case P.W.1 produced Ex.P.11-Medical Bills 53 in numbers to the tune of Rs.77,250/- and also produced Ex.P.12 Prescriptions 47 in numbers. Respondent No.1 cross examined the PW.1 and suggested that Medical bills are not tallying with the prescriptions and hospital records which is denied by the PW.1. Here in the entire cross-examination of PW.1 or in any other way in order to disbelive the Ex.P.11-Medical bills 53 in numbers and Ex.P.12-Prescriptions 47 in numbers he has not brought and produced any material evidence on record. It is also important to note that PW.2 who is Manager and Medical Records Incharge Officer produced Ex.P.16-Inpatient case sheet. Hence advocate for respondent No.1 though cross-examined the PW.2 but in order to disbelive the Ex.P.16- 32 SCCH-24 MVC No.4376/2018 Inpatient case sheet of petitioner he has not brought any material evidence on record. Hence looking at Ex.P.12-Prescriptions 47 in numbers and Ex.P.16-Inpatient case sheet of petitioner the Ex.P.11- Medical bills 53 in numbers to the tune of Rs.77,250/- can be belived and petitioner is entitled for the said amount of Rs.77,250/- under the head of Medical Expenses. Here petitioner stated that he spent Rs.2,00,000/- for medical expenses. But he has not produced the bills to that amount. Hence under such circumstances the petitioner entitled only Rs.77,250/- under the head of medical expenses.
26. Compensation due to disability : Petitioner in his petition and evidence stated that due to impact of accident he sustained fracture of bilateral clavicle bone, fracture of multiple vertebral bone, fracture of ribs on both sides, multiple deep abrasions and other injuries all over body. Hence said injuries caused permanent disability. Here petitioner produced the Ex.P.9-Wound Certificate, Ex.P.10-Discharge card, Ex.P.15-Copy of MLC Register Extract, Ex.P.16-Inpatient case sheet, Ex.P.13-Photographs and Ex.P.13(a)-CD, Ex.P.17-OPD book and Ex.P.18-Xray films (3 in numbers). Petitioner also examined the PW.3 Dr. Chidanand and he deposed that he assessed the petitioner as per guidelines given by Ministry of Social Justice and empowerment government of India and opined that petitioner has got permanent physical disability of 14%.
26(a). Here PW.3 in his examination in chief at para No.2 deposed that, "I submit that patient had following injuries : 1) Multiple vertebrae fracture. 2) Bilateral clavicle fracture. 3) 33 SCCH-24 MVC No.4376/2018 Multiple rt sided ribs fracture". Here PW.3 in his examination in chief at para No.3 deposed that "on 10.01.2020 he came for disability assessment and following points noted, pain and tenderness over the TL Spine area, no neurovascular defecits, flexion and extension of spine restricted. X-ray both shoulders shows fracture malunited clavicle fracture, X-ray TL spine shows L2 wedge compression fracture with degenerative changes". Here as per guidelines of Ministry of Social Justice and Empowerment Government of India the PW.3 has not stated in his evidence the percentage of L2 wedge compression. It is also important to note that PW.3 in his evidence deposed that "According to the guidelines given by Ministry of Social Justice and empowerment government of India, patient has got permanent physical disability in relation to spine to whole body is 14%." Here as per guidelines of Ministry of Social Justice and Empowerment Government of India at the time of assessment of disability in respect of trunk i.e., Spine permanent physical impairment should be awarded in relation to spine only and not in relation to whole body. Hence PW.3 in his evidence as stated above he assessed the permanent physical disability in relation to spine to whole body is of 14%. Advocate for respondent No.1 cross examined the PW.3 and at page No.5 deposed that "The details of injuries which are mentioned in para No.2 of my affidavit is diagnosed in discharge summary. The petitioner has taken conservative treatment to all the fractures." Here PW.3 in his examination in chief deposed that patient was treated conservatively in form of brace. Hence looking at this examination in chief and cross examination of PW.3 it is clear that 34 SCCH-24 MVC No.4376/2018 petitioner had taken treatment conservatively in the form of brace. PW.3 in his examination in chief also deposed that, "the above injuries are permanent in nature. Patient will have difficulty to involve in his daily routine works as well as manual work" and also deposed that petitioner sustained permanent physical disability of "thoraco lumbar spine injuries compression of more than 50% involving single or more with involvement of posterior elements, healed, no neurological manifestation persistent pain body without neurological manifestation at 14%." Hence PW.3 assessed the permanent disability of petitioner to the whole body at 14%. I went through the Ex.P.9-Wound Certificate, Ex.P.16-copy of MLC Register Extract and Ex.P.16-Inpatient case sheet at NCT Thorax report dated 20.07.2018. At Ex.P.16-Inpatient case sheet NCT Thorax report dated 20.07.2018 mentioned that :
"Comminuted fracture of junction of proximal one third and distal two thirds of the shaft of bilateral clavicles with displaced fracture fragments. Mildly displaced fractures of postero lateral aspect of right first, sixth, seventh, eighth, ninth ribs; antero lateral aspect of the right second fourth, fifth, sixth, seventh ribs ; segmental frature of antero lateral aspect of right third rib, antero lateral aspect of the left first rib, mildly displaced fracture of left third, fourth, fifth and sixth ribs.
Anterior wedge compression of L2 vertebral body. Mildly displaced fractures of spinious proceesses of T2, T3m, T4, T5, T6, T7, T8 vertebrae.
35 SCCH-24 MVC No.4376/2018 Midly displaced fracture of left transverse process of L1, L2, L4 vertebrae and bilateral transbverse processes of L3 vertebra.
Mild soft tissue swelling is noted overlying the above described fractures."
26(b). At Ex.P.9-Wound Certificate, Ex.P.10-Discharge card and Ex.P.15-Copy of MLC Register Extract mentioned the said injuries and fractures. PW.3 also after taking Ex.P.18-Xray films(3 in numbers) and as per Ex.P.7-OPD book came to the conclusion that petitioner has sustained Multiple vertebra and ribs fractures. Hence looking at all these documents and evidence of PW.3 and in view of guidelines of Ministry of Social Justice and Empowerment Government of India and taking into considering the age of petitioner I am of considered opinion that the petitioner sustained permanent physical disability in relation to whole body is at 8% and I am taking into consideration for assessment of compensation 8% of permanent physical disability of petitioner. Hence injuries sustained by him will affect his day to day life and avocation to some extent. Such being the case looking at injuries sustained by the Petitioner, the evidence of Doctor and considering the medical records, the percentage of permanent disability to the whole body of Petitioner is taken as 8%. This Tribunal considered the notional income of Petitioner as Rs.9,000/- per month. As on the date of accident the age of Petitioner was 62 years. For the age of 62 years the applicable multiplier is "7" as per the Smt. Sarala Verma and others V/s Delthi Transport Corporation and another, (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and Others, (2017) 16 SCC 680. So, the loss of permanent 36 SCCH-24 MVC No.4376/2018 physical disability would be Rs.9,000 x 12 x 7 x 8/100 = Rs.60,480/-. For the aforesaid reasons the Petitioner is entitled for compensation of Rs.60,480/- under the head of permanent disability.
27. Compensation for laid up period : Here petitioner as per medical records admitted and taken treatment at Srinivasa Speciality Hospital as inpatient from 20.07.2018 to 01.08.2020. Hence this Tribunal determined the income of the petitioner as Rs.9,000/- per month. Hence petitioner who is dependent on his own income he lost his income during laid up period. Accordingly he is entitled for compensation during his laid up period. The petitioner admitted as inpatient for 13 days. Hence after discharge he advice to take rest. Hence taking into to note of period of petitioner as inpatient he would have definitely taken the bed rest at least for 20 days. In total the petitioner lost his income for 33 days. Hence if this Tribunal awards Rs.9,900/- to petitioner as a compensation for laid up period then it would meets the ends of justice at both the ends. Accordingly I award Rs.9,900/- to the petitioner as a compensation for laid up period.
Accordingly the petitioner is entitled for the compensation under the following heads.
1. For pain and sufferings. Rs.50,000/-
2. For Special diet and Conveyance. Rs.15,000/-
3. Medical expenses. Rs.77,250/-
4. Compensation due to disability. Rs.60,480/-
5. Rs. 9,900/-
Compensation for laid up period.
Total Rs.2,12,630/-
37 SCCH-24
MVC No.4376/2018
So, the petitioner is entitled for a total compensation of Rs.2,12,630/- (Rupees Two Lakhs Twelve Thousand Six Hundred and Thirty only).
28. Interest : Here petitioner in his petition sought for the imposition of interest on the compensation amount at the rate of 12% per annum. Respondent No.1 in his written statement of objections at para No.6 stated that if this Hon'ble Tribunal grants compensation to the petitioner against him then as per guidelines of Reserve Bank of India and Hon'ble Apex Court interest at the rate of 6% per annum is to be imposed. Hence I went through Section 171 of M.V.Act which reads as under.
"Section 171. Award of interest where any claim is allowed. - Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf".
28(a). Hence as per said Section it is clear that when Tribunal allows the claim for compensation made under this Act, this Tribunal may direct to pay simple interest on the compensation amount at such rate and from such date not before the date of making the claim petition. Hence this provision gives power to the Tribunal to impose simple interest at such rates as it deems fit and proper. Accordingly under this Section there is no specific rate of interest which is to be imposed on the compensation amount by the Tribunal. Hence the discretion is vested in the Tribunal to determine the just and proper rate of interest on the compensation amount.
28(b). I went through Puttamma and Others v. K.L. Narayana Reddy and Another, (2013) 15 SCC 45 in which Hon'ble Supreme Court of India after 38 SCCH-24 MVC No.4376/2018 going through its earlier decisions and also the various provisions of Acts as to interest and it observed at para No.64 as under :
"64. In view of the aforesaid provisions of the Act, 1988 (Section 171) and the observation of this Court, as noticed above, we keep this question open for Tribunals and Courts to decide the rate of interest after taking into consideration the rate of interest allowed by this Court in similar case and other factors such as inflation, change in economy, policy adopted by the Reserve Bank of India from time to time and the period since when the case is pending."
28(c). Hence in view of observation of Hon'ble Supreme Court of India it is clear that the Tribunal can decide the rate of interest after taking into consideration the rate of interest which allowed by the Hon'ble Supreme Court of India in similar cases and also other factors such as inflation, change in economy policy adopted by Reserve Bank of India from time to time and the period since when the case is pending.
28(d). I went through A. Manavalagan V/s A. Krishnamurthy and others ILR 2004 Kar 3268 and looking at and taking into consideration of all and surrounding circumstances the Tribunal can impose such rate of interest as it deems fit, reasonable and appropriate. Hence in the petition petitioner sought to impose 12% of interest on the compensation amount. Hence looking at the facts and circumstances of the case and taking into consideration of rate of interest which is varying from time to time, if this Tribunal impose simple interest at the rate of 6% per annum on the said compensation amount it would be just, fair and reasonable. Accordingly this Tribunal is imposing 6% interest on the above said compensation amount. Hence petitioner is entitled to recover the said compensation amount along 39 SCCH-24 MVC No.4376/2018 with simple interest at the rate of 6% per annum from the date of petition till realization.
29. Liability to pay compensation : Here the respondent No.1 in his written statement of objections and arguments stated that the Tata Ace Magic bearing No.KA-53-C-0321 was insured. In the present case the accident took place on 20.07.2018 at 08.30 a.m. I perused the Ex-P.7-Reply to notice under Section 133 of M.V. Act wherein respondent No.2 at Column No.11 and 12 stated that name of insurance company is National Insurnce Co.Ltd i.e., Respondent No.1 and insurance policy No.55270031176360067342 and the period of insurance policy is 31.08.2017 to 30.08.2018. Petitioner produced the photo copy of certificate of insurance cum policy schedule wherein it is mentioned the said policy No.55270031176360067342, package policy and the period of insurance is of 31.08.2017 to 30.08.2018 and it is issued in respect of vehicle bearing No.KA-53-C-0321. Hence on perusing the Ex-P.7-Reply to notice, copy of Insurance Policy, Ex-P1 First Information Report, Ex.P-2 First Information Statement, Ex.P-3 Spot Mahazar, Ex.P.5-Motor Vehicle Accident report, Ex.P.8-Charge sheet and oral evidence of PW-1 it is clear that as on the date of accident the said Insurance Policy is in force. Hence the accident occurred solely because of rash and negligent driving of the driver of the said Tata Ace Magic. Hence the respondent No.2 entered into contract with the respondent No.1 for indemnity in cases of accident and as per contract respondent No.1 assured to indemnify and issued said Insurance Policy. Hence as per said Insurance policy the respondent No.1 has to indemnify to the loss suffered by the petitioner because of injuries. Accordingly the liability is on the respondent No.1 as per contract of indemnity between respondent No.1 and 2. Hence under all the circumstances the respondent No.1 has to pay the 40 SCCH-24 MVC No.4376/2018 compensation amount of Rs.2,12,630/- (Rupees Two Lakhs Twelve Thousand Six Hundred and Thirty only) along with simple interest at the rate of 6% per annum from the date of petition till payment to the petitioner. Hence for the above stated facts, circumstances, reasons I answer Issue No.2 in the Partly Affirmative.
30. Issue No.3: For the above stated facts, circumstances, reasons and findings on Issue No.1 and 2, I proceed to pass the following:
ORDER The petition filed under Section 166 of the Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is awarded a total compensation of Rs.2,12,630/- (Rupees Two Lakhs Twelve Thousand Six Hundred and Thirty only) with simple interest at the rate of 6% per annum from the date of petition till payment.
The respondent No.1 is liable to pay the compensation amount to the petitioner.
The respondent No.1 shall pay the said compensation amount to the petitioner within 60 days from the date of this Order.
In the total compensation amount Rs.50,000/- shall be kept in Fixed Deposit in the name of petitioner in any of the Nationalised or Scheduled Bank for a period of 2 years free from encumbrance with liberty to draw the accrued periodical interest. Remaining compensation amount with interest shall be disbursed to the petitioner.
Advocate's fee is fixed at Rs.1,000/-.
41 SCCH-24 MVC No.4376/2018 Draw Award accordingly.
(Dictated to the stenographer directly on computer, corrected by me and then pronounced in the open Court on 18th day of December, 2020) (RACHOTI MAHAGUNDAPPA SHIRUR) XXII Addl. Small Causes Judge and A.C.M.M, Member, M.A.C.T., Bangalore.
ANNEXURE Witnesses examined on behalf of the Petitioners:
P.W.1 - Sri. Muni Ajjappa. P.W.2 - Sri. Devaraj. P.W.3 - Dr. Chidananda
Witnesses examined on behalf of the Respondents:
- Nil -
Documents marked on behalf of the Petitioners :
Ex.P1 - Copy of First Information Report. Ex.P2 - Copy of First Information Statement.
Ex.P3 - Copy of Spot Mahazar.
Ex.P4 - Copy of Amanath Panchanama.
Ex.P5 - Copy of IMV Report.
Ex.P6 - Copy of Notice issued U/s 133 of MV.Act.
Ex.P7 - Reply to notice.
Ex.P8 - Copy of Charge sheet.
Ex.P9 - Copy of Wound Certificate.
Ex.P10 - Discharge summary.
Ex.P11 - 53-Medial bills.
Ex.P12 - 47-Prescriptions.
42 SCCH-24
MVC No.4376/2018
Ex.P13 - 5-Photographs.
Ex.P14 - Authorisation letter.
Ex.P15 - Copy of MLC Register Extract.
Ex.P16 - Inpatient case sheet.
Ex.P17 - OPD card.
Ex.P18 - 3-X-ray films.
Documents marked on behalf of the Respondents:
- Nil -
(RACHOTI MAHAGUNDAPPA SHIRUR) XXII Addl. Small Causes Judge and A.C.M.M, Member, M.A.C.T., Bangalore. 43 SCCH-24 MVC No.4376/2018 AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA & XXII ASCJ, BENGALURUCITY M.V.C.No.4376/2018 Petitioner: Sri. Muni Ajjappa, S/o Nanjappa, Aged about 56 yeas, R/at No.06, Balenahalli village, Bendiganahalli post, Hosakote Taluk, Bangalore Rural District.
(Rep. By : Sri.P. Suresh Advocate, Bengaluru).
-Versus-
Respondents: 1. National Insurance Co.Ltd., Bangalore Regional Office, No.144, Shubram Complex, 2nd Floor, M.G.Road, Bangalore-560001.
(Rept.by its Incharge Manager) Insurer of the vehicle bearing No.KA-53-C-0321 Policy No.55270031176360067342 Validity : 31.08.2017 to 30.08.2018.
2. Sri. Muniraju. K, S/o Kyathappa, Major in age, R/at Sarkanut village, Near Ganesha Temple, Hosakote Taluk, Nelavagilu, Bangalore Rural District.
(Owner of the vehicle) 44 SCCH-24 MVC No.4376/2018 (Res.No.1 by : Sri. G.V. Jagadeesha, Advocate, Bengaluru Res.No.2 by : Ex parte).
WHEREAS, this petition filed on by the Claimant/s above named U/sec.110-A/166 of the M.V.Act, praying for the compensation of Rs.
(Rupees Only) for the injuries sustained by the Claimant/Death of In a Motor Accident by Vehicle NO.
WHEREAS, this claim petition coming up before Rachoti Mahagundappa Shirur, XXII A.S.C.J, Member, MACT, Bangalore in the presence of Sri/Smt. Advocate for petitioner/s and of Sri.Smt. Advocate for respondent.
ORDER The petition filed under Section 166 of the Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is awarded a total compensation of Rs.2,12,630/- (Rupees Two Lakhs Twelve Thousand Six Hundred and Thirty only) with simple interest at the rate of 6% per annum from the date of petition till payment.
The respondent No.1 is liable to pay the compensation amount to the petitioner.
45 SCCH-24 MVC No.4376/2018 The respondent No.1 shall pay the said compensation amount to the petitioner within 60 days from the date of this Order.
In the total compensation amount Rs.50,000/- shall be kept in Fixed Deposit in the name of petitioner in any of the Nationalised or Scheduled Bank for a period of 2 years free from encumbrance with liberty to draw the accrued periodical interest. Remaining compensation amount with interest shall be disbursed to the petitioner.
Advocate's fee is fixed at Rs.1,000/-.
Given under my hand and seal of the Court this day of 2020.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA BENGALURU.
By the
Petitioner/s Respondent
Court fee paid on 10.00
petition
Court fee paid on 00.00
Process
Pleaders Fee
Total Rs.
Decree Drafted Scrutinised by MEMBER
MACT, METROPOLITAN AREA
BENGALURU
Decree Clerk SHERISTEDAR
46 SCCH-24
MVC No.4376/2018
18.12.2020
Judgment pronounced in open court
(Vide separate Judgment)
ORDER
The petition filed under Section 166 of the Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is awarded a total compensation of Rs.2,12,630/- (Rupees Two Lakhs Twelve Thousand Six Hundred and Thirty only) with simple interest at the rate of 6% per annum from the date of petition till payment.
The respondent No.1 is liable to pay the compensation amount to the petitioner.
The respondent No.1 shall pay the said compensation amount to the petitioner within 60 days from the date of this Order.
In the total compensation amount Rs.50,000/- shall be kept in Fixed Deposit in the name of petitioner in any of the Nationalised or Scheduled Bank for a period of 2 years free from encumbrance with liberty to draw the accrued periodical interest. Remaining compensation amount with interest shall be disbursed to the petitioner.
Advocate's fee is fixed at Rs.1,000/-.
Draw Award accordingly.
XXII ASCJ & MEMBER, MACT-Bengaluru.
47 SCCH-24 MVC No.4376/2018