Bangalore District Court
In Thimmaiah vs Smt.Gowramma on 8 December, 2021
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES, MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BENGALURU
(S.C.C.H. - 1)
DATED THIS THE 8th DAY OF DECEMBER'2021
PRESENT : Smt. Prabhavati M. Hiremath,B.A., L.L.B.(Spl.)
MEMBER, PRL. M.A.C.T.,
M.V.C. No. 2990/2018, 2991/2018, 2992/2018
AND 2993/2018
PETITIONER IN THIMMAIAH,
MVC S/o.Narasimhamurthy,
NO.2990/2018: Aged 32 years,
R/at Byraveshwaranagar,
Kudur, Magadi Taluk,
Ramanagaram District.
PETITIONER IN GANGARATHNAMMA,
MVC W/o.Thimmaiah,
NO.2991/2018: Aged 32 years,
R/at Byraveshwaranagar,
Kudur, Magadi Taluk,
Ramanagaram District.
PETITIONER IN YASHODHA,
MVC W/o.Thimmaraju,
NO.2992/2018: Aged 35 years,
R/at T.Begur,
Kasaba Hobli,
Nelamangala Taluk,
Bangalore Rural District.
PETITIONER IN MANJUNATHA,
MVC S/o.Huchaiah,
SCCH - 1 2 MVC 2990 to 2993/2018
NO.2993/2018: Aged 19 years,
R/at Geddalahalli,
Kasaba Hobli,
Nelamangala Taluk,
Bengaluru Rural District.
Petitioners are represented by Venkateshaiah, Advocate
RESPONDENTS 1.SMT.GOWRAMMA,
COMMON IN W/o.Huchaiah,
ALL THE Aged Major,
PETITIONS: R/at Geddalahalli,
Kasaba Hobli,
Nelamangala Taluk,
Bangalore Rural District.
(Owner of TVS Appache Motorcycle
bearing Reg.No.KA.04/JM.6832)
2.THE MANAGER,
ICICI Lombard Motor Insurance Co.,
Ltd.,
No.121, The Estate Building,
9th Floor, Diskson road,
Bangalore 560 001.
(Policy No.3005/TV11883161/00/000
Valid from 06.09.2017 to 07.09.2018)
Respondent No.1 - Exparte
Respondent No.2 - SNR, Advocate
COMMON JUDGMENT
These 4 petitions are filed under Section 166 of
the Motor Vehicles Act, 1988, averring similar facts
with reference to the mode of accident, as under:
SCCH - 1 3 MVC 2990 to 2993/2018
2) Brief facts of the petition are as
follows:
On 20.11.2017, at about 06.45 pm.,
Thimmaiah, the petitioner in MVC No.2990/2018,
was proceeding on his Hero Honda Motorcycle
No.KA.42/U.2299 along with his wife, the petitioner
in MVC No.2991/2018 and his wife's sister, the
petitioner in MVC No.2992/2018, as pillion riders.
When he was proceeding on Geddalahalli road near
Humson Factory, Nelamangala Taluk, a TVS Apache
Motorcycle No.KA.04/JM.6832 came in high speed
and in rash or negligent manner and dashed against
the petitioner's motorcycle. As a result, the
petitioner and two pillion riders sustained injuries.
MVC No.2990/2018
3) In the said accident, the petitioner in
MVC No.2990/2018 has sustained CLW over fore
head extending to upper nasal region, CLW over
SCCH - 1 4 MVC 2990 to 2993/2018
upper inner nuersal louzer of upper lip, swelling and
tenderness over left maxillary region, left diffuse
cerebral edema, upper 2nd and 3rd incisor missing and
other injuries all over the body. Immediately after
the accident, he was shifted to M.S.Ramayya Harsha
Hospital, Nelamangala and taken treatment as an
inpatient for a period of 12 days, by spending
Rs.2,10,000/.
4) The accident occurred due to the
rash or negligent act of riding of TVS Apache
Motorcycle by its rider. A case is registered against
the rider of the said TVS Apache Motorcycle. Due to
the injuries sustained in the accident, the petitioner
has lost his physical fitness.
5) Prior to the accident, the petitioner
was hale and healthy, aged about 32 years and
earning Rs.20,000/ by working as coolie and also
doing agriculture and as a waterman. Therefore, a
compensation of Rs.8,50,000/ is claimed jointly
SCCH - 1 5 MVC 2990 to 2993/2018
and severally from the respondent No.1, the owner of
the TVS Apache Motorcycle and the respondent No.2,
the Insurer of the said TVS Apache motorcycle.
MVC No.2991/2018:
6) It is the case of the petitioner in MVC
No.2991/2018 that in the said accident, she
sustained CLW over tempero occipital region,
swelling and tenderness over right temporal and
mamdisulsun area and other parts of the body.
Immediately after the accident, she was shifted to
Ramayya Harsha Hospital, Nelamangala wherein she
has taken treatment as an inpatient for 5 days, by
spending Rs.50,000/.
7) At the time of accident, she was aged
32 years, hale and healthy. She was earning
Rs.17,000/ per month by doing agricultural work as
well as coolie.
SCCH - 1 6 MVC 2990 to 2993/2018
8) The injuries sustained by her in the
accident, resulted in permanent disability, on
account of which, she lost her future earning
capacity. Therefore, the petitioner has claimed a
compensation of Rs.1,50,000/ jointly and severally
from the respondent No.1, the owner of the TVS
Apache Motorcycle and the respondent No.2, the
Insurer of the said TVS Apache motorcycle.
MVC No.2992/2018:
9) It is the case of the petitioner in MVC
No.2992/2018 that in the accident, she sustained
abrasion over right eyebrow, swelling over right
orbital area and other injuries. She was shifted to
Ramayya Harsha Hospital, Nelamangala, wherein she
has taken treatment as an inpatient for 2 days by
incurring Rs.30,000/.
10) She was aged 35 years at the time of
the accident and doing agricultural work and also as
SCCH - 1 7 MVC 2990 to 2993/2018
a coolie and earning Rs.15,000/ per month. Due to
the injuries sustained in the accident, she is left with
permanent disability and unable to discharge her
normal work. Therefore, she has claimed
compensation of Rs.1,50,000/ jointly and severally
from the respondent No.1, the owner of the TVS
Apache Motorcycle and the respondent No.2, the
Insurer of the said TVS Apache motorcycle.
MVC No.2993/2018
11) It is the case of the petitioner in MVC
No.2993/2018 that on 20.11.2017, at about 6.45
pm., he was travelling as pillion rider on TVS Apache
Motorcycle No.KA.04/JM.6832. One Rajanna was
riding the said Apache Motorcycle. Due to the rash
or negligent act of riding of the said Apache
Motorcycle, near Humson Factory, Kasaba Hobli,
Nelamangala Taluk on Geddalahalli Road, it dashed
to the Hero Honda Motorcycle bearing
No.KA.42/U.2299.
SCCH - 1 8 MVC 2990 to 2993/2018
12) As a result, the petitioner fell down
and sustained fracture of nasal bone, nasal bleeding,
abrasion over right thigh, right and left knee joints
and other injuries all over the body.
13) After the accident, he was shifted to
Somashekara Hospital, Nelamangala, wherein he has
taken treatment as an inpatient for 8 days and spent
Rs.80,000/ for his treatment.
14) At the time of the accident, the
petitioner was aged 19 years, hale and healthy and
earning Rs.18,000/ by doing agricultural work and
coolie.
15) Due to the injuries sustained in the
accident, he is left with permanent disability and lost
his earning capacity. Therefore, a compensation of
Rs.6,50,000/ is claimed jointly and severally from
the respondent No.1, the owner of the TVS Apache
Motorcycle and the respondent No.2, the Insurer of
the said TVS Apache motorcycle.
SCCH - 1 9 MVC 2990 to 2993/2018
16) After service of notice of these
petitions, the respondent No.1 remained absent and
placed exparte. Respondent No.2 Insurance
Company appeared through its advocate in all the
four petitions and filed its Statement of Objections as
follows:
MVC No.2990/2018 to 2992/2018:
17) The petitions are not maintainable.
Entire averments in all the four petitions are denied
in toto by stating that the petitioners are required to
prove the same.
18) The petitioners have not furnished
the correct policy. It is contended that no such
policy, as claimed by the petitioners in the petition
has been issued by their Company in favour of the
first respondent in respect of the alleged TVA Apache
Motorcycle No.KA.04/JM.6832. Other objections are
SCCH - 1 10 MVC 2990 to 2993/2018
taken subject to proof of issuance of Insurance Policy
as under:
Negligent act on the part of the rider of the
TVS Apache Motorcycle bearing No.KA.04/JM.6832
is denied. It is specifically contended that there is
self negligence on the part of the rider of the Hero
Honda Passion motorcycle No.KA.42/U.2299.
Therefore, the petitions are not maintainable. The
owner and insurer of the vehicle No.KA.42/U.2299
are necessary parties to the present proceedings.
Therefore, the petitions are bad for nonjoinder of
necessary parties and bad for misjoinder of parties.
The RC owner of the motorcycle No.KA.04.JM.6832
has not furnished the particulars and thereby has
failed to comply with the mandatory requirements of
Section 134(c) of the MV Act.
19) The TVS Apache motorcycle is not at
all involved in the accident and the said vehicle has
been falsely implicated in the alleged accident. The
SCCH - 1 11 MVC 2990 to 2993/2018
rider of the Hero Honda Passion Pro motorcycle was
riding the motorcycle with two pillion riders and he
having lost control over his vehicle, fell down due to
his self negligence and all the three persons
sustained injuries. There is violation of Section
122(8) of the Motor Vehicles Act by the rider of the
Hero Honda Passion Pro motorcycle in carrying two
pillion riders. The rider of the TVS Apache
Motorcycle was not having valid and effective driving
licence and thereby the respondent No.1 has violated
the policy conditions. Entire averments of the
petitions with regard to the age, avocation and the
income of the petitioners, injuries sustained by them,
treatment taken, amount spent by them for their
treatment, disability alleged to have been suffered by
them are denied by stating that petitioners be put to
strict proof of the same. The compensation claimed
in all the petitions is exorbitant compared to the
SCCH - 1 12 MVC 2990 to 2993/2018
nature of injuries sustained by the petitioners in the
accident and prayed to dismiss the petitions.
MVC No.2993/2018:
20) The petitioner has not furnished the
correct policy. It is contended that no such policy, as
claimed by the petitioner in the petition has been
issued by their Company in favour of the first
respondent in respect of the alleged TVA Apache
Motorcycle No.KA.04/JM.6832. Other objections are
taken subject to proof of issuance of Insurance Policy
as under:
The petition is not maintainable. The rider
of the TVS Apache Motorcycle has no capacity to ride
the motorcycle. He had no valid and effective driving
licence. The owner of the motorcycle has allowed the
person to ride the vehicle, who has no driving licence
by knowing the same and thereby violated the terms
and conditions of the policy.
SCCH - 1 13 MVC 2990 to 2993/2018
21) The petitioner was not proceeding as
a pillion rider on the alleged motorcycle and instead,
he was riding the same. It is contended that the user
of the vehicle is by some other person, than the
owner of the vehicle, and the reason for alleged
accident might be the rider of the Hero Honda
Passion Pro motorcycle. The obligation of the
insured is legal self obligation as per law and hence,
any violation of law does not warrant to reward, any
contract act. The legal maxim "volunty fit non
injuria" is applicable to the case on hand. The entire
averments in the petition that the petitioner was
travelling as pillion rider on the TVS Apache
Motorcycle, his age, avocation and income, injuries
sustained, amount spent for treatment are denied in
toto and the amount of compensation claimed is
contended to be exorbitant and hence, prayed to
dismiss the petition.
SCCH - 1 14 MVC 2990 to 2993/2018
22) From the above said pleadings of the
parties, the following Issues are settled for trial by
my learned predecessor in Office:
MVC No.2990/2018 to 2992/2018
1) Whether the petitioner proves that he/she
sustained injuries in a Motor Vehicle Accident
that occurred on 20.11.2017 at about 06.45
pm., on Geddalahalli Road near Hamson
Factory, Kasaba Hobli, Nelamangala Taluk,
Bangalore Rural within the jurisdiction of
Nelamangala Rural Police Station on account
of rash and negligent riding of the TVS Apache
Motorcycle bearing registration
No.KA.04/JM.6832 by its rider?
2) Whether the respondent No.2 proves that
the accident has occurred on account of
negligent act of rider of Hero Honda
motorcycle?
3) Whether the petitioner is entitled for
compensation? If so, how much and from
whom?
4) What order?
SCCH - 1 15 MVC 2990 to 2993/2018
MVC No.2993/2018
2) Whether the petitioner proves that she
sustained injuries in a Motor Vehicle
Accident that occurred on 20.11.2017 at
about 06.45 pm., on Geddalahalli Road near
Hamson Factory, Kasaba Hobli,
Nelamangala Taluk, Bangalore Rural within
the jurisdiction of Nelamangala Rural Police
Station on account of rash and negligent
riding of the TVS Apache Motorcycle bearing
registration No.KA.04/JM6832 by its rider?
2) Whethere the petitioner is entitled for
compensation? If so, how much and from
whom?
3) What order or award?
23) As per the Order dated 03.05.2019, MVC
No.2991/2018 to 2993/2018 are ordered to be
clubbed with MVC No.2990/2018 and the parties
were directed to adduce common evidence in MVC
No.2990/2018.
24) In support of the petitioner's case, the
petitioners have examined themselves as PW 1 to 4
SCCH - 1 16 MVC 2990 to 2993/2018
and they have also examined 3 witnesses as PW 5 to
7 and got marked in all 35 documents as Ex.P.1 to
P.35.
25) The respondent No.2 has examined two
witnesses as RW 1 and 2 and got marked 6
documents as Ex.R.1 to R.6, including the CD.
26) Heard arguments on both sides.
27) For the reasons stated in the subsequent
paragraphs, I answer the above Issues as under:
MVC No.2990/2018 to 2992/2018:
Issue No.1 : In the affirmative,
Issue No.2 : In the negative,
Issue No.3 : Accordingly,
Issue No.4: As per final order,
MVC No.2993/2018:
Issue No.1 : In the affirmative,
Issue No.2 : Accordingly,
Issue No.3 : As per final order, for the
following:
SCCH - 1 17 MVC 2990 to 2993/2018
REASONS
28) ISSUE No.1 and 2 in MVC
No.2990/2018, 2991/2018 and 2992/2018: All
these Issues are with reference to the negligent act of
riding of the motorcycle, whether by the petitioner in
MVC No.2990/2018 or riding of TVS Apache
Motorcycle No.KA.04/JM.6832 by its rider. Hence,
all these Issues are taken up together to avoid
repetition of facts and evidence.
29) To prove the rash or negligent act of riding
of TVS Apache Motorcycle by its rider, the petitioners
relied on their own oral evidence as they have been
examined as PW 1 to 3 and the Police records.
30) Ex.P.1 is the FIR along with Complaint,
Ex.P.3 is the Spot Panchanama and Ex.P.4 is the
Charge Sheet.
SCCH - 1 18 MVC 2990 to 2993/2018
31) On the contrary, the respondent No.2 -
Insurance Company has taken the contention that
due to the negligent act on the part of the petitioner
in MVC No.2990/2018, the accident occurred.
32) From going through Ex.P.1 - FIR, it is
clear that one Timmaraju, S/o.Kariyappa has lodged
the complaint on 23.11.2017 visiting the Police
Station at 09.30 am. The complainant is the
husband of petitioner in MVC No.2992/2018 ie.,
PW 3.
33) In the complaint, he has mentioned that
on 20.11.2017, his wife Yashodha along with PW 2
was proceeding on Hero Honda Passion Pro
Motorcycle bearing No.KA.42/U.2299 and PW 1 was
riding the Hero Honda along with 2 pillion riders. At
about 06.45 pm., near Hamson Factory, a TVS
Apache Motorcycle came from opposite direction in
high speed in wrong side of the road and dashed to
the Hero Honda of PW 1, thereby the rider and 2
SCCH - 1 19 MVC 2990 to 2993/2018
pillion riders fell down and sustained injuries. After
the accident, the injured were shifted to hospital.
After getting information, he visited the hospital and
he provided treatment to 3 persons ie., his sister
PW 2, her husband PW 1 and his (complainant's) wife
PW 3. After getting his sister Gangarathnamma
discharged from the hospital, he came to lodge the
complaint. The rider of the opposite vehicle has also
sustained injuries. On the basis of the complaint,
investigation was conducted and at the time of the
registration of the case, the accused Rajanna is
mentioned as the rider of the TVS Apache Motorcycle
bearing No.KA.04/TC.10 NEW.
34) On completion of the investigation, charge
sheet is filed against Rajanna, the rider of the TVS
Apache motorcycle No.KA.04/JM.6832.
35) The contention of the learned advocate for
the respondent No.2 is that there is delay in lodging
the complaint. During the course of cross
SCCH - 1 20 MVC 2990 to 2993/2018
examination of PW 1, he has categorically denied that
he does not know the respondent No.1 personally or
he does not know the name of the rider of the TVS
Apache Two Wheeler. As they have sustained
injuries in the accident, immediately he and other
two pillion riders were shifted to hospital and
husband of PW 3 has lodged the complaint. The
Police have not recorded his statement since for 1½
days, he was unconscious and in the complaint,
there is reference regarding why there is delay in
lodging the complaint. As all three persons,
including his wife and his sister and her husband
have sustained injury, they have been shifted to
hospital for treatment. Therefore, it was not possible
for him to lodge complaint immediately. He has
mentioned that after getting his sister
Gangarathnamma discharged from the hospital, he
came to the Police Station and lodged the complaint.
SCCH - 1 21 MVC 2990 to 2993/2018
36) From going through the Inpatient Final Bill
(Summary) of Gangarathnamma marked as Ex.P.15,
it is clear that she was discharged on 22.11.2017 at
4.45 pm., and the complaint is lodged on 23.11.2017
at 09.30 am.
37) In the chief examination of PW 2 and
PW 3, they have deposed regarding the negligent act
on the part of the rider of TVS Apache Motorcycle.
The same was not disputed during the course of their
crossexamination. From the evidence of PW 1 to 3,
it is proved that TVS Apache Motorcycle came from
opposite direction in high speed and dashed by
coming to wrong side.
38) The above evidence of PW 1 to 3 is
corroborated with the Spot Panchanama. In Ex.P.3
Spot Panchanama, the scene of offence is described
as TonachinakuppeGeddalahalli Road in North
South direction. The width of the road is 15 feet.
The exact scene of offence is towards Western side of
SCCH - 1 22 MVC 2990 to 2993/2018
the road. Towards Northern side of the road,
Tonachinakuppe is situated and towards Southern
side of scene of offence, Geddalahalli is situated. At
the time of accident, the PW 1 to 3 were proceeding
on two wheeler from Geddalahalli towards
Tonachinakuppe. Their correct side ie., left of the
road. Eastern side of the road is for vehicles
proceeding from Tonachinakkuppe towards
Geddalahalli. But the scene of offence is towards
western side of the road. TVS Apache Motorcycle
which was proceeding from Tonachinakuppe was
required to proceed on Eastern side of the road. But,
it came towards the Western side of the road ie., the
place of impact. This act on the part of the rider of
the TVS Apache Motorcycle resulted in occurrence of
accident. Said facts are substantiated by the
evidence of PW 1 to 3 that TVS Apache came towards
its right side of the road ie., wrong side and dashed,
is probalised. Therefore, from the evidence of PW 1
SCCH - 1 23 MVC 2990 to 2993/2018
to 3, the petitioners have proved that only due to
rash or negligent act of riding of TVS Apache
Motorcycle by its rider, the accident occurred.
39) The learned advocate for the respondent
No.2 argued that PW 1 was riding the motorcycle
with 2 pillion riders. Therefore, there is contributory
negligence on the part of the PW 1 himself.
40) In this case, it is an admitted fact that at
the time of accident, PW 1, as rider and PW 2 and 3,
as pillion riders were travelling on Hero Honda
Passion Motorcycle. Now the question is whether
that fact itself is sufficient to hold that there is
contributory negligence, is to be seen.
41) Similar point is considered by the Hon'ble
Apex Court in the decision reported in AIR 2020 SC
520 (Mohammed Siddique and another Vs National
Insurance Co., Ltd., and Others). In the said case,
their Lordships have held that riding with two pillion
SCCH - 1 24 MVC 2990 to 2993/2018
riders may be a violation of law. But, such violation
by itself without anything more, cannot lead to a
finding of contributory negligence, unless it is
established that his very act of riding along with two
others, contributed either to the accident or to the
impact of the accident upon victim.
42) In this case, as already stated above, the
accident occurred on the left side of the road on
Tonachinakuppe Road. As PW 1 was proceeding
towards Tonachinakuppe, it was his correct side. On
the contrary, the TVS Apache which was proceedings
towards Geddalahalli had come towards wrong side
ie., towards its right side and dashed to the two
wheeler of PW 1. Therefore, there is no evidence on
record to show that by riding the two wheeler with
two pillion riders, PW 1 has contributed his
negligence in the accident. Therefore, the argument
advanced by the learned advocate for the respondent
No.2 is not acceptable one.
SCCH - 1 25 MVC 2990 to 2993/2018
43) In view of my above fact finding that, it is
proved that only due to the rash or negligent act of
riding of TVS Apache motorcycle by its rider, the
accident occurred. It will not make any difference
whether PW 4 was riding the motorcycle or other
person was riding the same. In both consequences,
the present petitioners in three petitions ie., PW 1 to
3 are third parties to respondent No.1 and 2. Since
the respondent No.1 is the owner and the respondent
No.2 is the Insurer of the TVS Apache motorcycle,
both the respondents are liable to pay compensation
to the petitioners.
44) To prove that in the said accident, PW 1 to
3 have sustained injuries, they have relied on the
medical records. Ex.P.2 and P.7 are the Wound
Certificate and Discharge Summary of PW 1
Thimmaiah, Ex.P.12 and P.14 are the Wound
Certificate and Discharge Summary of PW 2
Gangarathnamma and Ex.P.17 is the Wound
SCCH - 1 26 MVC 2990 to 2993/2018
Certificate of PW 3 - Yashoda. From gong through
these documents, it is clear that they have sustained
injuries in the accident. Thus, the petitioners have
proved that in the accident, they have sustained
injuries in the accident. Hence, Issue No.1 is
answered in the affirmative and Issue No.2 is
answered in the negative.
45) Issue No.2 in MVC No.2993/2018: In
this case, the petitioner has contended that he was
the pillion rider on the TVS Apache Motorcycle and
the rider of the it, having driven it in rash or
negligent manner dashed to Motorcycle
No.KA.42/U.2299 and caused the accident and in
the accident, he sustained injuries.
46) During the course of trial and in the
objections to main petition, the respondent No.2 in
this case has taken a specific contention that the
petitioner in MVC No.2993/2018 was not the pillion
rider and in fact, he was riding the motorcycle under
SCCH - 1 27 MVC 2990 to 2993/2018
the influence of alcohol. He has driven the
motorcycle in rash or negligent manner and caused
the accident. The accused person, against whom the
charge sheet is filed by the Police, by name, Rajanna,
was not the rider of the TVS Apache, which was
insured with the second respondent. There is
collusion between the petitioners, the respondent
No.1 and Rajanna and a false case is registered
against the rider of the TVS Apache Motorcycle and
in collusion with the Police, the charge sheet is filed
against the said Rajanna, who was not the rider of
the insured motorcycle.
47) For that, the respondent No.2 has relied
on the evidence of RW 2 - a private investigator.
48) During the course of evidence of RW 2,
video recording of conversation between RW 2 and
Rajanna played and got marked as Ex.R.6.
49) With reference to Ex.R.6, the learned
advocate for the respondent No.2 vehemently argued
SCCH - 1 28 MVC 2990 to 2993/2018
that as per the conversation between RW 2 and
Rajanna, he (Rajanna) was not riding the vehicle, and
in fact, the petitioner in MVC No.2993/2018 was
riding the motorcycle and since, he had no driving
licence to drive the vehicle, as he was injured, his
(Rajanna's) name was implicated as accused as rider
as he has got driving licence to ride the motorcycle.
50) Now the question, is whether that the said
defence is substantiated by the respondent No.2, is
to be seen.
51) From going through the charge sheet
marked at Ex.P.4, it is clear that during
investigation, the Investigating Officer has recorded
the statement of owner of TVS Apache Motorcycle
and charge sheet is filed against Rajanna.
52) The respondent No.2 has produced MLC
Extract as per Ex.R.1. From going through Ex.R.1
MLC Extract of PW 4, it is mentioned that the patient
was brought with the history of RTA at about 7.00
SCCH - 1 29 MVC 2990 to 2993/2018
pm., on 20.11.2017 near Pepsi Company. Ex.R,2 is
the application filed by the respondent No.2 -
Insurance Company for supply of MLC to
Somashekar Hospital and Ex.R.3 is the application
filed by the Insurance Company to supply MLC to
M.S.Ramaiah Harsha Hospital, Nelamangala,
Bengaluru.
53) On going through Ex.R.2, there is an
endorsement made by the hospital authorities that
the patient by name Rajanna was not admitted in
their hospital. In Ex.R.3, it is endorsed that no
details found about the said person having taken
treatment in their hospital ie., in terms of the
endorsement made on Ex.R.3. As per Ex.R.3, the
Insurance Company sought M.S.Ramaiah Harsha
Hospital authorities to issue MLC Extract of
Mr.Rajanna, S/o.Ramanna. The date of admission is
mentioned as 20.11.2017. In Ex.R.2 also, on behalf
of the Insurance Company, it is requested to issue
SCCH - 1 30 MVC 2990 to 2993/2018
MLC Extract of Mr.Manjunath and Rajanna. Date of
admission is mentioned as 20.11.2017 at about
09.30 pm.
54) Relying on these endorsements, the
learned advocate for the respondent No.2 vehemently
argued that Rajanna has not taken treatment either
in M.S.Ramaiah Harsha Hospital, Nelamangala or
Somashekara Hospital.
55) As per Ex.R.2 and R.3, endorsement was
taken from only two hospitals, wherein other injured
persons were admitted. That endorsements are not
sufficient to hold that Rajanna had not at all taken
any treatment as there is possibility of he having
taken treatment in different hospital. In the cross
examination, PW 4 - Manjunath has admitted that
at the time of accident, he had consumed alcohol. He
does not know riding of two wheeler. On that day, he
was pillion rider. The rider Rajanna has also
sustained injuries.
SCCH - 1 31 MVC 2990 to 2993/2018
56) Answer given by PW 1 and the answer
given by PW 4, in their crossexamination with
reference to injuries sustained by rider Rajanna tally
with each other. PW 4 has deposed that on the same
day, rider Rajanna has not taken treatment and
admitted to hospital. Therefore, the endorsement
made on Ex.R.2 and R.3 that the documents were
not found with reference to Rajanna itself is not
sufficient to hold that he was not the rider of the
vehicle.
57) In the evidence of RW 2, he has clearly
stated that he has conducted private investigation
and he has interacted with Rajanna. Even though he
(Rajanna) has refused to give his statement, however
he has permitted him to record conversation
between himself and Rajanna. As per the said
conversation, he has clearly disclosed that he was
not riding the TVS Apache Motorcycle. He has
submitted his driving licence with an intention to get
SCCH - 1 32 MVC 2990 to 2993/2018
his vehicle released, which was seized in relation to
the accident in question and at that time, he has
informed the Police that he was riding the vehicle.
The contents of Ex.R.6 - CD are reproduced, as it is,
in his deposition.
58) Now the question is what is the evidentiary
value of the contents in Ex.R.6, is to be seen.
59) Admittedly, Rajanna is alive. He is facing
criminal trial before the jurisdictional criminal court.
The Insurance Company has not adduced his
evidence. Now, whether the conversation recorded in
Ex.R.6 are sufficient to come to the conclusion that
Rajanna was not riding the TVS Apache motorcycle
and in fact, PW 4 was the rider of the TVS Apache
Motorcycle, insured with the second respondent, is to
be seen.
60) Further, the question is whether the
conversation between RW 2 and Rajanna amounts to
admission, confession or statement, is to be seen.
SCCH - 1 33 MVC 2990 to 2993/2018
61) At this juncture, it has to be stated here
that the same cannot be treated as an admission as
the said statement is not against the maker of the
statement and it cannot be said that it is a
confession statement as he has not admitted the
guilt. He has stated that before Police, he informed
that he was riding the vehicle.
62) Under Chapter IV of the Evidence Act, all
facts except contents of documents may be proved by
oral evidence. Oral evidence must be direct. The
above conversation between RW 2 and Rajanna is
statement of Rajanna. The same is required to be
proved by his evidence.
63) From visualising the videography, once, we
can hear the voice of person who was trying to sit on
the two wheeler. But to identify the said person as
Rajanna, except oral evidence of RW 2, nothing is on
record. Identity of that person as Rajanna is also
required to be proved in accordance with law. Even
SCCH - 1 34 MVC 2990 to 2993/2018
for a moment, the said conversation is considered as
conversation between Rajanna and RW 2 and under
Ex.R.6 electronic videographing with voice recording
is available, but the question is whether such
statement is admissible under the Evidence Act.
Whether it becomes relevancy of the statement under
Part I of Evidence Act - Relevancy of Facts, is to be
seen.
64) Under Sections 32 to 39 of the Indian
Evidence Act, what statements are relevant is
provided. Only 8 category of statements provided in
Section 32 are relevant. If the statement relates to
cause of death or the statement made in the course
of business, or against interest of maker, or gives
opinion as to public right or custom, or matter of
general interest, or relates to existence of
relationship, or is made in will or deed relating to
family affairs, or in document relating to transaction
mentioned in Section 13 Clause(a) or is made by
SCCH - 1 35 MVC 2990 to 2993/2018
several persons, and expresses feelings relevant to
matter in question. The other statements are not
relevant statement under Part I of Indian Evidence
Act.
65) Under Section 145 of the Evidence Act,
earlier statement made by witness shall have to be
subjected for crossexamination. As in this case,
Rajanna is very well available, his evidence was not
recorded and there is no opportunity to the
petitioners to crossexamine him. Only on the basis
of conversation recorded in Ex.R.6, which is contrary
to police records and in the absence of providing
opportunity to the petitioners to crossexamine him,
it is not admissible in evidence as the statement
made in Ex.R.6 is not coming under the purview of
Section 32 of the Indian Evidence Act.
66) From the conversation recorded in the
evidence of RW 6, it is clear that for the purpose of
getting the vehicle released, he has handed over his
SCCH - 1 36 MVC 2990 to 2993/2018
driving licence and informed the police that he was
the rider. If that is so, it creates doubt regarding his
integrity. There is chance of making this conversation
with Investigating Officer, for any other purpose. He
has not come forward to give his statement before the
private Investigating Officer or Investigating Officer.
The respondent No.2 or the Insurance Company has
not tried to prove the conversation by summoning
Rajanna before this Tribunal.
67) Even though the respondent No.2 has
proved that there is no tampering with the recording
of Ex.R.6 as per the Certificate issued by the Lab as
per Ex.R.5 and there is no meddling at the time of
recording conversation, but that itself is not
sufficient to hold that what is found in the
conversation are all true version. The burden is on
the respondent No.2 to prove that what was told by
Rajanna is true fact. That is not proved by the
respondent No.2 in accordance with law of evidence.
SCCH - 1 37 MVC 2990 to 2993/2018
68) If Rajanna had informed false facts to the
Investigating Officer only for the purpose of getting
the vehicle released, he may have informed false facts
to the Private Investigating Officer also. Therefore, in
the absence of his examination, electronic evidence
as per Ex.R.6 itself is not sufficient to hold that PW 4
was not the rider of the vehicle.
69) In view of my above said observation
regarding the evidentiary value of Ex.R.6, Ex.R.6
itself is not sufficient to hold that PW 4 was the rider
of the TVS Apache Motorcycle. Nowhere in the
conversation, he has stated that PW 4 was the rider
of the vehicle. On the contrary, from the evidence of
PW 1 and the Police records, the petitioner PW 4
has proved that as on the date of accident, he was
the pillion rider and not the rider.
70) In all all MLC Registers, the details of
occurrence of the accident is not mentioned. It is
only mentioned as RTA with date, time and place.
SCCH - 1 38 MVC 2990 to 2993/2018
That fact itself is not sufficient to come to the
conclusion that in collusion with the doctors, they
have only mentioned the fact of the accident in the
MLC As three persons are blood relatives have
injured in the accident, information might have been
furnished as RTA. From Ex.R.1 also, it is clear that
another hospital wherein PW 4 was admitted, their
also, they have not noted the details of accident.
That MLC Extract was produced on receipt of witness
summons at the request of the Respondent No.2
Insurance Company. Therefore, non mentioning of
details of accident in the MLC Register itself is not
sufficient to doubt about the Police records.
71) In this case, the contention of petitioner
that the accident has occurred due to the rash or
negligent act of riving of TVS Apache Motorcycle by
its rider, has not been disproved by the respondent
No.2. Further, while answering Issue No.1 and 2 in
MVC No.2990/2018 to 2992/2018, it is held that the
SCCH - 1 39 MVC 2990 to 2993/2018
accident has occurred due to the rash or negligent
riding of the TVS Apache Motorcycle by its rider.
72) To prove that in the accident, th petitioner
has sustained injuries, the petitioner has relied on
Ex.P.19, which is the Wound Certificate issued by
Somashekara Hospital, Nelamangala, which shows
that in the accident, the petitioner has sustained
injuries.
73) The advocate for the respondent No.2 has
placed reliance on the following judgments:
(1) 2012 AIR SCW 2241( Civil appea
No.2943/2012 (S.L.P.NO.30683/2010 D.D.
20.03.2012) (Surinder Kumar Arora and another Vs.
Dr.Manoj Bisla and others) wherein it is held that:
Motor Vehicles Act(59 of 1988), Ss.163A,166Accident
Claim for compensation Filed by parents of deceased
under S.166 and not under S.163AOnus to prove act of
rash and negligent driving by driver of vehicle was on
claimantsFailure to discharge, by adducing cogent
evidence Rejection of claim filed by claimants under
S.166was proper.
SCCH - 1 40 MVC 2990 to 2993/2018
(2) 2015(1)AKR 818( Zameer Vs. Mehaboob Basha
and othersM.F.A.No.6235 of 2009(MV)
DD.09.01.2015) wherein it is held that:
Motor Vehicles Act(59 of 1988), S.166 Claim petition -
dismissal of validityclaimant alleging that he sustained
injuries in vehicular accidentBurden lies upon the
claimant to prove and establish that accident took place
only due to fault of driver of offending vehicleEvidence
showing that accident took place only due to fault of
claimant himselfclaimant failed to prove and establish
that accident took place due to fault on part of driver of
offending vehicle Dismissal of claim petition, proper.
(3) ILR 2009 KAR 3562 (Veerappa and another Vs
Siddappa and another) wherein the Division Bench of the
High Court of Karnataka has held has under:
"(A) Motor Vehicles Act, 1988 - Accident claim - Dismissal
of claim petition - Appealed against - "FRAUS ET JUS
MUNQUAM COHABITANT" - Fraud and Justice Never
Dwell together - An attempt on the part of the 1 st
respondent/owner to collude with the claimants with the
fond hope of saddling the Insurance Company to pay
compensation - 1st Respondent/Owner of the vehicle
admitted the accident and had no objection for award of
compensation - HELD, Even though the owner of the
vehicle in unmistakable terms, has admitted the incident,
that admission has no value in the eye of law. He has
admitted something about which he has no knowledge
and, which he has not seen. It is clear that the said
admission is made with the sole object of getting
compensation to the claimants as it is the insurance
company which will pay, and not the owner. Though
admission is the best piece of evidence, it cannot be
SCCH - 1 41 MVC 2990 to 2993/2018
accepted as gospel truth. The Court can insist on proof of
fats, if the admission is not satisfactory. In the instant
case, since the Court was not satisfied, it wanted the
claimants to prove their case independently. The
claimants have miserably failed to prove their case. - ON
FACTS, HELD, The accident took place on 26.06.2001.
The injured died on 28.06.2001. No complaint is lodged
by the father of the injured setting out the case now
pleaded. According to him, he went to lodge a complaint
on 28.08.2001. They refused to receive it. Therefore, he
lodged a private complaint before the jurisdictional
Magistrate on 31.08.2001. The earlier FIR, charge sheet
are all suppressed both by the Police and the claimant.
The vehicle involved in the accident was never seized by
the Police. The truth came out during investigation by the
insurer. Under these circumstances, the Tribunal was
justified in dismissing the claim petition.
(4) ILR 2009 KAR 2921 ( Bajaj Allianz General
Insurance Company Limited Vs.B.C.Kumar and
another) wherein it is held that:
Motor Vehicles Act, 1988 Accident ClaimAward
Insurance Company appealPlea of Guilt by the driver
Conviction in the Criminal Case Can the plea of guilt by
the driver become the sole criterion for allowiig the claim
petition by the M.A.C.T. A case of Insurance Company
disputing the very factum of Accident Sustainability of
the award passed by the M.A.C.T. Held, the M.A.C.T.
should not ought not to place sole reliance on the
judgment of the Criminal Court while considering the
issue of the factum of the accident and the consequent
negligence, as stated in the claim petition filed before the
Tribunal. But the Tribunal will have to assess the evidence
before it independently of any finding of the Criminal
Court on the question of the driver pleading guilty. At the
most, the circumstance of the driver pleading guilty may
be considered as one of the pieces of evidence to support
the case of the claimant. But, the Tribunal should not
SCCH - 1 42 MVC 2990 to 2993/2018
place implicit reliance only on the circumstance of the
driver having pleaded guilty before the Criminal Court and
such an approach by the Tribunals will be not only an one
sided approach but at the same time, there is every
likelihood of the pleading of guilt by a driver before the
Criminal Court having been obtained by adopting various
methods so as to ensure that the claimant succeeds
before the M.A.C.T. is getting compensation Further held,
there has been spate of cases wherein false claims have
been made before the claims Tribunal and false
implications are also on the increase. The M.A.C.Ts are
constituted not only to allow the claim petitions which
are genuine in nature but, at the same time, the Tribunals
also will have to keep in view that compensation should
not be awarded mechanically in every case and to accept
the case of the claimant as if all that the claimant says
about the accident and the injuries is a truthful one.
Merely because a claimant in particular case comes out
with the evidence that the driver of the vehicle is
convicted on his pleading guilty, the Tribunal should not
go by the plead guilty factor alone, but it is required to
appreciate the evidence before it from every angle and if
there is good reason to question the very case of the
claimant or doubt the very manner of the accident, in
such cases, the Tribunal wil have to view the factor of
pleading guilty along with the entire evidence placed
before it and make an assessment of the whole situation
Award passed by the Tribunal is not justified. Appeal is
Allowed.
(5) 2017 ACJ 1226 ( D.Govardhan Vs. Sathish
Poojari and another) wherein it is held that:
Motor Vehicles Act, 1988 Section 166 (1) Claim
applicationMaintainbility of Negligenceclaimant in his
claim application stated that he was travelling on
Motorcycle as pillion rider mentioning specific
registration number, vehicle skidded and he along with
rider fell down and sustained injuries claimant lodged
police complaint after 22 days of the accident that while
SCCH - 1 43 MVC 2990 to 2993/2018
he was walking on the road, a Motorcycle hit him from
behind and motorcyclist fled away but he subsequently
made restatement that he was proceeding on Motorcycle
as pillion rider, while avoiding potholes vehicle met with
accident and he sustained injuries In his claim
application injured stated that motor cyclist took him to
the hospital but hospital records disclose that some one
else got him admitted to the hospital In medicoLegal
Register it was mentioned that injuries are due to road
accident but vehicle number or manner of accident has
not been mentionedEvidence produced by claimant runs
contrary to the complaint lodged FIR does not mentioned
anything about the restatement which shows that re
statement was made long after filing of the FIRNo
evidence produced to show manner of occurrence of
accidentWhether the Tribunal was justified in concluding
that claimant failed to prove occurrence of accident due
to rash and negligent riding of motorcyclist which is sine
qua non for claiming compensation and dismissing claim
application Held:yes
(6) 2013(1) KCCR 745 (BD) ( B.M.T.C., Vs. Sri
Mujahid Ali ) wherein it is held that:
Motor Vehicles Act, 1988 Section 173(1) Accident Motor
Vehicle CompensationMotor Vehicle Tribunal ordering for
compensation to the tune of Rs.4,74,000/. The
Respondent Corporation felt aggrieved and challenged the
awardThe appeal allowed compensation reduced to
Rs.2,51,000/ as the Tribunal has not verified the
evidence properly.
74) In view of my fact finding of proof of
negligent act of rider of TVS Apache Motorcycle and
that PW 4 was the pillion rider of TVS Apache
SCCH - 1 44 MVC 2990 to 2993/2018
Motorcycle, the principles laiddown in the above
cases, are not applicable to the case on hand.
75) Thus the petitioner has proved that the
accident has occurred due to the rash or negligent
act of riding of motorcycle No.KA.04/JM.6832 by its
rider and in the accident, he suffered injuries.
Hence, Issue No.2 in MVC No.2993/2018 is
answered in the affirmative.
76) Issue No.3 in MVC No.2990/2018:In
this case, petitioner has claimed total compensation
of Rs.8,50,000/ for the injuries sustained by him in
the accident.
77) In the decision reported in (2011) 1 SCC
343 ( Raj Kumar Vs. Ajay Kumar and another)
Division Bench of the Hon'ble Apex Court has laid
down on what grounds compensation is required to
be awarded in personal injury case. In para 6 of the
said judgment Their Lordships have demarcated the
SCCH - 1 45 MVC 2990 to 2993/2018
heads in which compensation is required to be
considered are reads as under:
6. The heads under which compensation is
awarded in personal injury cases are the
following:
Pecuniary damages(Special damages)
(i)Expenses relating to treatment,
hospitalization, medicines, 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
Nonpecuniary 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)
68) From going through the above said
decision, it is clear that under the pecuniary
damages expenses relating to the treatment,
SCCH - 1 46 MVC 2990 to 2993/2018
hospitalisation, medicines, transportation,
nourishing food and miscellaneous expenditure are
required to be considered. In the second head, loss
of earning and other gains of the injured person is
required to be considered. In the background of
principle laid down by their Lordships in the above
said decision, we can consider what amount the
petitioner is entitled for compensation.
69) To prove what are the injuries sustained
by him in the accident, the petitioner has relied on
Medical records referred above. As per Ex.P.2 -
Wound Certificate, the petitioner has suffered the
following injuries in the accident:
1) CLW over forehead extending to upper nasal
region.
2) CLW over upper iner mucosal layer of upper
Lip.
3) Swelling and tenderness over left maxillary
and jaw region.
SCCH - 1 47 MVC 2990 to 2993/2018
4) Periorbital edema
5) Upper 2nd and 3rd incisor missing.
70) Injury No.1 and 2 are stated to be grievous
and other injuries are stated to be simple in nature.
71) As per Ex.P.7 - Discharge summary, the
petitioner has taken treatment as an inpatient for 10
days and during which period, he underwent surgery
on 23.11.2017. As per the evidence of PW 7, the
doctor, the petitioner is required to undergo another
surgery for removal of metal plates which are placed
in lower right mandible and maxilla region. Thus
considering the nature and gravity of injuries, the
petition is awarded Rs.40,000/ under the head
Pain and Sufferings.
72) As already stated above, as per Ex.P.7 -
Discharge Summary, the petitioner has taken
treatment as inpatient for a period of 10 days.
Therefore, the compensation of Rs.10,000/ is
SCCH - 1 48 MVC 2990 to 2993/2018
awarded to the petitioner towards Food,
Nourishment and Attendant Charges.
73) It is the case of the petitioner that he has
spent huge amount for his treatment. In this
regard, he has relied on 35 Medical Bills for
Rs.1,43,230/ produced as Ex.P.8. Sl.No.1 of Ex.P.8
is the Inpatient Final Bill for Rs.1,10,000/ issued by
M.S.Ramaiah Harsha Hospital, which is towards
treatment charges, which does not contain bill
towards medicines, and equipments. Ex.P.2 to 35
are the bills towards medicines and equipments. To
doubt the genuinity of the Bills at Ex.P.8, nothing is
on record. Therefore, the petitioner is awarded
compensation of Rs.1,40,230/ towards medical
expenses.
74) The petitioner has taken follow up
treatment after his discharge from the hospital.
Presumably, the petitioner might have incurred some
amount towards his transportation charges. Hence,
SCCH - 1 49 MVC 2990 to 2993/2018
the petitioner is awarded Rs.2,000/ towards
transportation charges.
75) It is the specific case of the petitioner that
he has sustained permanent disability. To prove the
same, he relied on the evidence of PW.7 - Doctor. PW
7 in his chief examination affidavit has stated that
due to the injuries sustained in the accident, the
petitioner has suffered permanent disability. He has
further deposed that on account of missing of teeth,
(Premolar and Lower Incisor), mobility of the anterior
teeth, disocclusion of the posterior teeth and
sensitivity of teeth, the petitioner has suffered 20%
disability to whole body.
76) During the course of cross examination by
the learned counsel for the respondent No.2, the
petitioner has admitted that he was working as a
waterman in Kudur Gram Panchayath, Magadi Taluk
and even now, he is working as a waterman and is
getting more salary as waterman than he was getting
SCCH - 1 50 MVC 2990 to 2993/2018
at the time of accident. From this categorical
admission on the part of the petitioner, it is clear that
there is no loss of earning capacity on account of the
injuries sustained in the accident. Considering the
evidence of PW 7 that the petitioner is still facing
difficulty in chewing his food and other physical
inconvenience, it is a fit case to award compensation
under the head loss of amenities in life instead of
loss of future earning capacity. Hence, the petitioner
is awarded Rs.50,000/ towards loss of amenities in
life.
77) Considering the nature and gravity of the
injuries sustained by the petitioner and the surgery
which the petitioner has undergone during his
treatment, the petitioner may not have been in a
position to attend to his work for a period of 2
months. As the accident occurred in the year 2017,
considering his notional income as Rs.10,000/ per
month, the petitioner is awarded Rs.20,000/
SCCH - 1 51 MVC 2990 to 2993/2018
towards loss of income during period of treatment,
for 2 months, at the rate of Rs.10,000/ per month
78) As per the evidence of PW 7, the petitioner
is required to undergo another surgery for removal of
metal plates which were placed in the lower right
mandible and maxilla region. Considering the said
aspect of the matter, an amount of Rs.25,000/ is
awarded towards future Medical Expenses, which
shall not carry any interest
79) The details of compensation, to which the
petitioner is entitled to is as under:
Sl. Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 40,00000
2. Food and nourishment, Rs. 10,00000
attendant charges
3. Medical expenses and Rs. 1,42,230
conveyance charges
00
4. Loss of amenities in life Rs. 50,00000
5. Loss of income during the Rs. 20,00000
period of treatment
SCCH - 1 52 MVC 2990 to 2993/2018
6. Future Medical Expenses Rs. 25,00000
TOTAL Rs. 2,90,230
00
80) Thus, the petitioner is awarded a total
compensation of Rs.2,90,230/ with interest at the
rate of Rs.6% p.a., on Rs.2,65,230/ only, from the
date of petition till realisation. Accordingly Issue
No.3 in MVC No.2990/2018 is answered.
81) Issue No.3 in MVC No.2991/2018: In
this case, the petitioner has claimed a compensation
of Rs.1,50,000/ for the injuries sustained by her in
the accident.
82) To prove what are the injuries sustained in
the accident, the petitioner has relied on Ex.P.12 -
Wound Certificate issued by M.S.Ramaiah Harsha
Hospital. On going through the same, it is clear that
the petitioner has suffered two injuries ie.,
1) CLW over left tempero occipital region
SCCH - 1 53 MVC 2990 to 2993/2018
2) Swelling and tenderness over right tempero
mandibular region.
83) The petitioner has also produced Ex.P.14 -
Discharge Summary and Ex.P.15 - Inpatient Final
Bills and on going through the same, it is clear that
the petitioner has been treated as an inpatient by
wound debridement and primary suturing from
20.11.2017 to 22.11.2017 and that she incurred
Rs.9,140/ for her treatment. The petitioner has
also produced Ex.P. 16 - Lab Report. Except these
documents, no other documents are forthcoming
form the side of the petitioner in support of her case.
84) Hence, considering the nature and gravity
of injuries and the period of treatment as well as the
amount spent for her treatment, the petitioner is
awarded Rs.25,000/ as global compensation
towards Pain and Suffering, amount spent for
treatment and conveyance etc.
SCCH - 1 54 MVC 2990 to 2993/2018
85) Accordingly, Issue No.2 in MVC No.3 in
MVC No.2991/2018 is answered.
86) Issue No.3 in MVC No.2992/2018: In
this case, the petitioner has claimed a compensation
of Rs.1,50,000/ for the injuries sustained by her in
the accident.
87) To prove what are the injuries sustained in
the accident, the petitioner has relied on Ex.P.17 -
Wound Certificate issued by M.S.Ramaiah Harsha
Hospital. On going through the same, it is clear that
the petitioner has suffered two injuries ie.
1) Abrasion over right eyebrow.
2) Swelling over right orbital region.
88) Both the injuries are stated to be simple in
nature.
89) Except the said Wound Certificate, the
petitioner has not produced any other document in
support of her case.
SCCH - 1 55 MVC 2990 to 2993/2018
90) Hence, considering the nature and gravity
of injuries and the treatment as well as the amount
that may have been spent for her treatment, the
petitioner is awarded Rs.15,000/ as global
compensation towards Pain and Suffering, amount
spent for treatment and conveyance etc.
91) Accordingly, Issue No.2 in MVC No.3 in
MVC No.2992/2018 is answered.
92) Issue No.2 in MVC No.2993/2018: In
this case, the petitioner has claimed a compenstion
of Rs.6,50,000/ for the injuries sustained in the
accident.
93) To prove what are the injuries sustained in
the accident, the petitioner has relied on Ex.P.19 -
Wound Certificate issued by Somashekara Hospital.
On going through the same, it is clear that the
petitioner has suffered four injuries ie.,
SCCH - 1 56 MVC 2990 to 2993/2018
1) Fracture of Nasal Bone, Nasal bleeding
present,
2) abrasions and small cut wounds over the
forehead
3) Abrasions over the right thigh,
4) Abrasions over the right and left knee joint
94) The above injuries are shown to be
grievous in nature.
95) Along with the Wound Certificate, the
petitioner has produced 14 Medical Bills at Ex.P.21,
for Rs.29,153/. Sl.No.1 of Ex.P.21, which is the
Inpatient Bill, is for Rs.19,000/, after discount.
Remaining bills are towards purchase of medicines.
From these Bills, it is clear that the petitioner has
been treated as an inpatient for 5 days from
20.11.2017 to 24.11.2017.
SCCH - 1 57 MVC 2990 to 2993/2018
96) Thus, considering the nature and gravity
of injuries and the period of treatment, the petitioner
is awarded Rs.20,000/ towards Pain and Suffering.
97) As there is no contra evidence to doubt the
genuinity of the Medical Bills produced at Ex.P.21,
the petitioner is awarded Rs.29,500/ towards
medical expenses.
98) The petitioner may have engaged some
private vehicle for his conveyance from the place of
accident to the hospital and then, after treatment
form the hospital to his house. Hence, the petitioner
is awarded Rs.2,000/ towards conveyance expenses.
99) It is the case of the petitioner that, at the
time of accident, he was aged 19 years and working
as coolie and also as an agriculturist and earning
Rs.18,000/. But the said contention regarding the
avocation and income of the petitioner, remained as
contention only, without proof.
SCCH - 1 58 MVC 2990 to 2993/2018
100) On going through Ex.P.20, which is copy
of the Aadhaar Card of the petitioner, his date of
birth is shown as 16.10.1999. The accident has
occurred on 20.11.2017. As on the date of accident,
the petitioner was running 19 years. Since, there is
no evidence to show the income of the petitioner,
notionally, the petitioner's income is taken as
Rs.10,000/ per month. As the petitioner has
suffered injuries in the accident and has taken
treatment as an inpatient for 5 days and after
discharge, he have taken rest for some day, the
petitioner is awarded Rs.5,000/ towards loss of
income during treatment and rest, for 15 days at the
rate of Rs.10,000/ per month.
101) Thus, the petitioner is awarded
compensation as under:
Sl.No. Heads of Compensation Amount of Compensation
1. Pain and Suffering 20,000.00
2. Medical Expenses 29,500.00
3. Conveyance Expenses 2,000.00
4. Loss of income during treatment 5,000.00
SCCH - 1 59 MVC 2990 to 2993/2018
and rest period (For 15 days @
Rs.10,000/- pere month)
56,500.00
102) Issue No.2 in MVC No.2993/2018 is
answered accordingly.
103) In all the petitions, the petitioners are
entitled to interest at the rate of 6% p.a., on the
compensation amount, from the date of petition till
realisation.
104) In view of my finding on Issue No.1 in the
affirmative, in all the petitions, holding that due to
rash or negligent driving of the TVS Apache
Motorcycle No.KA.04/JM.6832 by its rider, the
accident has occurred, the respondent No.1 who is
the Owner and the respondent No.2 who is the
Insurer of the said Motorcycle are jointly and
severally liable to pay the compensation to the
petitioners and the respondent No.2 Insurer shall
indemnify the respondent No.1 And pay the
SCCH - 1 60 MVC 2990 to 2993/2018
compensation amount within 2 months from the date
of this order.
105) Issue No.4 in MVC No.2990/2018 to
2992/2018 and Issue No.3 in MVC
No.2993/2018: In view of the discussions made
above, I proceed to pass the following:
ORDER
MVC No.2990/2018 The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for a compensation of Rs.2,90,230/ with interest at the rate of 6% per annum, on Rs.2,65,230/, only from the date of petition till realisation.
Out of the compensation amount, 50% with proportionate interest is ordered to be invested in high yielding fixed deposit in the name of the petitioner in any of the nationalized or scheduled bank of his choice for a period of 5 years. Interest on FD is payable on maturity. Remaining 50% amount SCCH - 1 61 MVC 2990 to 2993/2018 with proportionate interest is ordered to be released to him.
MVC No.2991/2018 The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for a compensation of Rs.25,000/ with interest at the rate of 6% per annum from the date of petition till realisation.
As the compensation amount awarded is meager, entire compensation amount together with accrued interest is ordered to be released to the petitioner.
MVC No.2992/2018 The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for a compensation of Rs.15,000/ with interest at the rate of 6% per annum from the date of petition till realisation. As the compensation amount awarded is meager, entire compensation amount together with accrued interest is ordered to be released to the petitioner. MVC No.2993/2018 The petition filed by the petitioner is allowed in part against the respondents.
SCCH - 1 62 MVC 2990 to 2993/2018 The petitioner is entitled for a compensation of Rs.56,500/ with interest at the rate of 6% per annum from the date of petition till realisation.
As the compensation amount awarded is meager, entire compensation amount together with accrued interest is ordered to be released to the petitioner.
In all the cases, the respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Advocate's fee is fixed at Rs.1,000/ in each case. Draw an award accordingly.
(Original Judgment shall be kept in MVC No.2990/2018 and a copy thereof in other cases) (Dictated to the Judgment Writer, transcription thereof corrected, revised, signed and then pronounced by me in the Open Court on this the 8 th day of December'2021) (SMT.PRABHAVATI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 Thimmaiah SCCH - 1 63 MVC 2990 to 2993/2018 P.W.2 Smt.Gangarathnamma P.W.3 Smt.Yashodha P.W.4 Manjunatha P.W.5 Manjunatha G., P.W.6 Naveen P.W.7 Dr.K.M.Kumaraswamy
Documents marked on behalf of the petitioners:
Ex.P.1 FIR with Complaint
Ex.P.2 Wound Certificate
Ex.P.3 Spot Mahazar
Ex.P.4 Charge Sheet
Ex.P.5 Driving Licence
Ex.P.6 Aadhaar Card
Ex.P.7 Discharge Summary
Ex.P.8 35 Medical Bills
Ex.P.9 7 Advance Receipts
Ex.P.10 Prescriptions
Ex.P.11 CT Scan and Lab Reports
Ex.P.12 Wound Certificate
Ex.P.13 Aadhaar Card
Ex.P.14 Discharge Summary
Ex.P.15 Medical Bills
Ex.P.16 Lab Reports
Ex.P.17 Wound Certificate
Ex.P.18 Aadhaar Card
Ex.P.19 Wound Certificate
Ex.P.20 Aadhaar Card
Ex.P.21 Medical Bills
Ex.P.22 Prescriptions
Ex.P.23 Medical Bill
Ex.P.24 X ray Films
Ex.P.25 Medical Bill
SCCH - 1 64 MVC 2990 to 2993/2018
Ex.P.26 IMV Report
Ex.P.27 Authorisation Letter
Ex.P.28 Case Sheet
Ex.P.29 MLC Register Extract
Ex.P30 X ray Films
Ex.P.31 ID Card
Ex.P.32 Case Sheet of petitioner in MVC
2993/2018
Ex.P.33 OPD Card
Ex.P.34 Dental X rays
Ex.P.35 X rays
Witnesses examined on behalf of the respondents :
RW 1 Anagha G.R. RW 2 Basha Gohar
Documents marked on behalf of the respondents:
Ex.R.1 :Copy of MLC Register Extract Ex.R.2 :Copy of Letter dated 20.08.2018 issued to Somashekar Hospital with Endorsement Ex.R.3 :Copy of Letter dated 20.08.2018 issued to M.S.Ramaiah Harsha Hospital with Endorsement Ex.R.4 :Copy of Insurance Policy Ex.R.5 :Report dated 10.03.2021 with reference to Forensic and Video Authentication with covering letter dated 20.03.2021 Ex.R.6 :CD (PRABHAVATI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.