Bangalore District Court
As Compensation Is Highly Exorbitant vs No.1 Has Examined The I.O. As R.W.1 And ... on 5 April, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 5th day of April, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.3903/2014
Sri. Shivakumar.B.K., ..... PETITIONER
S/o. Kariyappa,
Aged about 27 years,
R/at No.44,
C/o. Sadha, 3rd Cross,
Handarahalli Main Road,
Maruthinagar,
Bangalore - 560 091.
As per Voter Identity Card Address,
R/at C/o. Vinod,
No.71, 2nd Cross,
Ranadeera Kanterava Road,
Basavanagudi,
Bangalore - 19.
(By Sri. B. K. Kumara, Adv.,)
V/s
1. The Manager, ..... RESPONDENTS
Bharati Axa General Insurance
Company Ltd.,
"Pride Quadra",
No.30, 3rd Floor,
Bellary Road,
Hebbal,
Bangalore - 560 024.
(Insurer of offended Vehicle Auto
SCCH-7 2 M.V.C.NO.3903/2014
Rickshaw Bearing Registration No.KA-
05-AD-5870)
2. Mr. Krishnappa. T.,
S/o. Thimmegowda,
No.66, Chikkalasandra,
Marthas Hospital Road,
Uttarahalli,
Subramanyapura Post,
Bangalore - 560 061.
(R.C. Owner of offending vehicle Auto
Rickshaw bearing Registration No.KA-05-
AD-5870)
(R1- By Sri. H. K. Ramamurthy, Adv.,)
(R2- By Exparte)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 25,00,000/- with interest at the rate of 12% p.a., and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 09.08.2014 at about 8-15 p.m., he was standing on the side of the road, in order to cross the road, on Kanakapura Main Road, Near Raghuvanahalli Bus Stop, in front of Siddaganga School, very carefully, cautiously and observing all the traffic rules. At that time, Auto Rickshaw bearing Registration No.KA-05- AD-5870, driven by its driver at a very high speed in a rash and negligent manner so as to endangering to human life came from Bangalore side towards Kanakapura and took extreme left side of the road in order to overtake ahead Goods vehicle from left side SCCH-7 3 M.V.C.NO.3903/2014 and dashed against him. As a result, he fell down and sustained compression fracture of T12 and other injuries all over the body.
b) Immediately, he was shifted to Parimala Hospital, wherein, he was treated as an inpatient, X-ray was taken and confirmed the compression fracture of T12 with paraplegia. The Doctor, who had treated him, opined that, injuries caused permanent in nature and advised to undergo an operation. During the stay in the Hospital, he had operated and internal fixation was inserted to his fracture site. The Doctor further opinion that, injuries caused permanent in nature and it cannot be recovered fully throughout his life and discharged with advise to come for follow-up treatment. Still he is under treatment. He had incurred huge amount for his treatment, conveyances and nourishment, etc., Wherefore, he reserves his rights to furnish additional information regarding permanent disability, future treatment and losses, etc.,
c) Prior to accident, he was very hale and healthy and working as a Car driver and earning a sum of Rupees 12,000/- per month + daily bata of Rupees 50/- per day.
d) Due to these accidental injuries, he could not attend his work so far and he became permanent disabled and he lost total sensation below the waist and it is very difficult to lead a day to day life without sufficient income. Now he is fully depending upon others in all day to day activities. Due to total lost sensation on below the waist, his social life and marital life has become destroyed and he has to take regular treatment throughout his life. Hence, he and his family members are put to great hardship and mental agony.
SCCH-7 4 M.V.C.NO.3903/2014e) The Thalaghattapura Police have filed a case as against the driver of Auto Rickshaw bearing Registration No.KA-05-AD- 5870 for the offences punishable under Section 279 and 337 IPC. In turn, the Police have taken up investigation and after investigation, the said Police have filed a Charge Sheet as against the driver. This accident happened due to sole, rash and negligent manner of the said Auto Rickshaw by its driver.
f) At the time of accident, the Respondent No.1 was the insurer and the Respondent No.2 was R.C. Owner of the said Auto Rickshaw. The driver was in the course of employment under the Respondent No.2, holding a valid and effective driving licence. Therefore, both the Respondents are jointly and severally liable for payment of compensation. Hence, this petition.
3. Initially, though the notice was duly served on the Respondent No.1, he was remained absent and hence, he was placed as exparte on 09.11.2014. Later, the Respondent No.1 has appeared before this Tribunal through his Learned Counsel and as per the Order dated 06.12.2014 passed on I.A.No.I, the exparte Order is set-aside and the Respondent No.1 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 05.05.2015 passed on I.A.No.III, the written statement filed by the Respondent No.1 is taken on file.
4. Though the notice was duly served on the Respondent No.2, he was remained absent and hence, he is placed as exparte on 06.04.2015.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
SCCH-7 5 M.V.C.NO.3903/2014a) The claim petition is not maintainable in law and facts.
b) He admits that, the vehicle bearing No.KA-05-AD-5870 was covered at the material time under the policy of insurance issued by him subject to the terms, conditions, exceptions and limitations thereof and the confirmation of the compliance of Section 64VB of the Insurance Act, 1938.
c) Without prejudice, the Respondent No.2 vehicle and its driver have been implicated in the alleged accident with respect to the said case at the instance of the Petitioner in connivance with the jurisdictional Police and the Respondent No.2 has also co- operated with the Petitioner in doing the same. The complaint given to the jurisdictional Police after a lapse of 1 day from the date of alleged incident, these facts is evident on perusal of IMV Report and other Police documents, show that, the Respondent No.2 vehicle and its driver has been implicated in the alleged accident for illegal gain.
d) As per Section 134(c) of the M.V. Act, 1988, it is mandatory duty of the insured/Respondent No.2 to furnish the particulars of policy, date, time and place of accident, particulars of injured and the name of the driver and particulars of the driving licence, but, the insured has not complied with statutory demand. Hence, it is not liable to pay any compensation.
e) Without prejudice, the driver of the Respondent No.2 vehicle was not holding a valid and effective driving licence at the time of accident. The Respondent No.2 has handed over the possession of the vehicle to the said rider and therefore, has contravened the proviso of the M.V. Act and the Rules framed SCCH-7 6 M.V.C.NO.3903/2014 there under and has committed the breach of the terms and conditions of the policy.
f) The Respondent No.2 has violated the policy as well as the permit terms and conditions to ply his vehicle beyond permitted area and therefore, has contravened the proviso of the M.V. Act and the Rules framed there under and has committed the breach of the terms and conditions of the policy.
g) If at all, the alleged accident was taken place, it is only due to the careless and negligence on the part of the Petitioner, who was crossing the road without observing coming and going vehicles and un-known numbered vehicle caused the alleged accident.
h) He seeks protection under Section 147 and 149 of the M.V. Act.
i) As per Section 158(6) of the M.V. Act, 1988, it is a mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days from the date of the information, but, the Thalagattapura Police Station failed to forward the documents and not complied with the statutory demand.
j) The Petitioner claimed interest is highly excessive and same is contrary to Section 3 of the Interest Act, 1978 and the observations of the various Judgment of the Hon'ble Apex Court.
k) The Petitioner is not entitled to claim any interest on non-pecuniary damages as per the observations of the Judgment of Hon'ble Apex Court.
SCCH-7 7 M.V.C.NO.3903/2014l) He seeks permission of this Hon'ble Tribunal to contest the petition under Section 170 of IMV Act, if the owner of the vehicle fails to contest effectively or fails to co-operate with it.
m) Without prejudice, the amount claimed by the Petitioner as compensation is highly exorbitant, excessive, arbitrary and unreasonable and without any legal basis.
n) He reserves the right to file additional objections statement after receiving more information regarding alleged accident and other facts, circumstances of the case. Hence, prayed to dismiss the claim petition with costs.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Auto Rickshaw bearing Reg.No.KA-05- AD-5870 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation and damages? If so, how much and from whom?
3. What Order?
7. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.14. On the other hand, the Respondent No.1 has examined the I.O. as R.W.1 and has also SCCH-7 8 M.V.C.NO.3903/2014 examined his Legal Officer as R.W.2 and has placed reliance upon Ex.R.1 to Ex.R.7. Ex.R.6 and Ex.R.7 are marked during the course of cross-examination of R.W.1, by confrontation.
8. Heard the arguments.
9. In support of the submission, the Learned Counsel appearing for the Petitioner Sri. B. K. Kumara has placed reliance upon the decisions reported in,
i) 2013 AIR SCW 5375 (Minu Rout and Another V/s. Satya Pradyamna Mohapatra and Others), wherein, it is observed that, (A) Motor Vehicles Act, (59 of 1988), Ss.168, 170(b) - compensation -
Contributory negligence - head on collision between truck and Car driven by deceased - Evidence of injured eye-
witness that, occurrence was on account of rash and negligent driving of offending truck - Corroborated with evidence of betel shop owner whose shop is situated near spot of incident -
Non production of FIR has no consequence - Insurance Company though claimed permission under S.170(b) to contest proceedings by availing defence of owner of offending vehicle - But, it did not choose to examine either driver of truck or any other independent eye witness to prove allegation of contributory negligence on part of deceased - Finding of contributory negligence on part of deceased driver - Is erroneous for want of proper consideration of pleadings and legal evidence.
SCCH-7 9 M.V.C.NO.3903/2014ii) M.F.A.Nos.7869/2008, 7870/2008 and 8413/2008 (MV) High Court of Karnataka, Bangalore (Sheshappa V/s. The Oriental Insurance Co. Ltd., and Another), wherein, it is observed that,
5. The accident and liability are admitted. The accident is of the year 2007. The claimant is stated to be a coolie. P.W.9, the Doctor who examined the claimant has stated that, he suffered fracture of L1 Vertebrae with paraplegia and he was treated with surgery. Since then, he is under follow-
up treatment. On subsequent examination, he found that, the claimant complaining of pain in the back and he notice that, there is a motor sensory paralysis of both the lower limbs amounting to the whole body disability at 45%. The Tribunal however held the disability at 15% to the whole body. In my view, the same is wholly in appropriate.
6. Further, P.W.4 has stated that, there is a permanent disability of 90% due to sensory paralysis of both the lower limbs and whole body disability at 45% However, the T4ribunal held the same at 15% which is unacceptable. In view of the clear and cogent evidence that, the claimant has lost sense of both his limbs and he is not a position to work it would be appropriate to hold the disability at 100%.
iii) 2013 Kant M.A.C. 286 (Kant) High Court of Karnataka, Circuit Bench at Dharwad (Sri. Bhimappa V/s. Sri. Vidyaranya and Others), wherein, it is observed that, SCCH-7 10 M.V.C.NO.3903/2014 (A) Motor Vehicles Act, (59 of 1988) Section 173(1)-Appeal for enhancement of compensation -
Maintainability of-Alleged that, appellant sustained such non fatal injuries which brought 100% disability in him because of non functioning his both lower limbs-Monthly income of Petitioner appellant alleged Rupees 3,000/- per month on doing agricultural and milk vending profession-Tribunal awarded compensation of Rupees 7,73,600/- for all heads-Aggrieved claimant(appellant) filed an appeal against judgment and award for enhancement of compensation amount which allowed-
Hence, appellant held compensation amount of Rupees 19,49,000/- as against Rupees 7,73,600/- along with interest at rate of 6% from the date of petition till date of payment.
iv) M.F.A.No.7733/2009 (MV) High Court of Karnataka, Bangalore (K. E. Babu V/s. S. T. Manjesh and Another), wherein, it is observed that,
2. The Doctor-P.W.2 has stated about the amputation of the right arm at the upper 1/3rd. The claimant has no right hand to use. The Tribunal has held the disability at 70%. The same is inappropriate. The notional income taken at Rupees 4,000/- is also on the lower side. The Hon'ble Supreme Court in the case of Ramchandrappa Vs The Manager Royal Sundaram Alliance Insurance Company Limited reported in Air 2011 SC 295 has held that, the monthly income of a daily wage coolie could be taken at Rupees 4,500/- per month for an accident that, occurred in the year 2004. The accident is of the year 2007 Hence, the monthly income SCCH-7 11 M.V.C.NO.3903/2014 is taken at Rupees 5,000/- per month.
An erroneous deduction of 1/3rd is made which is liable to be set aside.
The claimant is said to be an agriculturist as well as electrical wireman in Veerabhadreshwar Electrical, Challakere. By losing right hand, he will not be able to attend to any avocation, either as an agriculturist or as an electrician./ No man can work only with one hand. Under these circumstances his disability is to be held at 100%. He was aged about 25 years at the time of accident and hence, the appropriate multiplier would be 19, in view of the judgment reported in AIR 2009 SC 3104 in the case of Sarala Verma V/s Delhi Transport Corporation. Accordingly, loss of income due to disability is worked out as follows Rupees 5,000 X 12 X 18X 100%= Rupees 10,80,000/-.
v) 2014 ACJ 1133 High Court of Delhi, New Delhi (Ritu V/s. Regional Manager, Uttaranchal State Road Transport Corporation and Others), wherein, it is observed that, Quantum-injury-Paraplegia- Right leg and part of left leg were completely crushed with multiple injuries to spinal cord at the level of 6th thoracic vertebra-
injured remained under treatment for quite long. In several renowned Hospitals and underwent surgeries for skin grafting plastic surgery, treatment for bowel and bladder injuries and hyper intensity in dorsal cord-injured girl aged 6, suffered 80% permanent disablement in respect of the whole body and total functional disability due to complete paraplegia below chest level including bladder and bower sphincters-There is no sensation and she has no control over calls of nature-
SCCH-7 12 M.V.C.NO.3903/2014injured cannot stand and walk due to post traumatic myelopathy level T-6 with complete paraplegia power grade -
0 with dense sensory loss- she was student of nursery at the time of accident but, she is ambitious to continue her education and was a student of class 12 in 2012- She attends her school on wheel chair and was secured first position in IV, V and VIOI standard in her school-Tribunal awarded Rupees 15,13,000- Appellate Court assumed income at Rupees 8,333/- per annum adopted multiple of 18 and allowed Rupees 17,099,928/-
for loss of earning capacity plus Rupees 3,00,000/- for pain and suffering Rupees 3,50,000/- for loss of amenities of life, Rupees 50,000 for disfiguration Rupees 75,000/- for loss of matrimonial prospects and 2,00,000/-
for loss of education, Rupees 2,50,000/- for medical expenses, Rupees 1,00,000/- for physiotherapy, Rupees 1,50,000/- for conveyance, Rupees 5,88,000 for attendants, Rupees 509,000/- for special diet, Rupees. 1,00,000/- for wheel chairs Rupees 2,000/- for wheel chair for bathing Rupees, 5000/- for commode chair, Rupees 50,000/- for special undergarments and Rupees 50,000/-
for jacket to be worn on wheel chair for balancing- Award of Rupees 15,13,000/- enhanced to Rupees 41,19,928/-.
vi) 2014 AIR SCW 856 (Sanjay Verma V/s. Haryana Roadways), wherein, it is observed that, Motor Vehicles Act (59 of 1988), S.168 - Accident - Compensation -
Claimant 25 years of age at the time of accident - Suffered paralysis, 80% SCCH-7 13 M.V.C.NO.3903/2014 disability - was earning steady income -
Addition of 50% to his income could be made - Correct multiplier to be applied would be 15 - Compensation of Rs.19,91,702/- granted to claimant under the heads loss of income, medical expenses, further treatment, pain and suffering, mental agony and cost of attendant till he remains alive.
10. In support of the submission, the Learned Counsel appearing for the Respondent No.1 Sri. H. K. Ramamurthy has placed reliance upon the decision reported in, 2014 AIR SCW 1081 (Lachoo Ram and Others V/s. Himachal Road Transport Corporation), wherein, it is observed that, (A) Motor Vehicles Act (59 of 1988), S. 168-Compensation-Liability to pay-
Claimants alleging that, Bus of Respondent corporation was involved in accident with Motor Cycle of deceased-
Mere involvement of Bus of Respondent corporation. In accident- cannot make Respondent liable to pay compensation unless it is shown that, accident was caused by rash and negligent act of Bus driver.
(B) Motor Vehicles Act (59 of 1988), S.169-Compensation-Rash and negligent Act- Claimants alleging that, bus of Respondent corporation was involved in accident with Motor Cycle of deceased- Witness present at spot stating that, deceased motor cyclist in an effort to overtake bus had gone on its right side and was not visible and therefore he could only hear sound of crash-not the case of any witnesses that, bus driver took sudden turn while SCCH-7 14 M.V.C.NO.3903/2014 proceeding forward from traffic signal or that, he swerved bus to right side-Plea of claimants that, accident was on account of rash or negligent driving by bus driver cannot be accepted-Order of High Court setting aside award of compensation therefore, proper.
11. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 19,97,772/-
with interest at the rate of
8% p.a. (excluding future
medical expenses of
Rupees 25,000/-) from
the date of the petition till
the date of payment, from
the Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
12. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, on 09.08.2014 at about 8.15 p.m., he was standing on the side of the road, in order to cross the road on Kanakapura Main Road, near Raghuvanahalli Bus Stop, in front of Siddaganga School, very carefully, cautiously and observing all the traffic rules and at that time, Auto Rickshaw bearing Registration No.KA-05-AD-5870, driven by its driver at a very high speed, in a rash and negligent manner, so as to endangering to human life, came from Bangalore side towards SCCH-7 15 M.V.C.NO.3903/2014 Kanakapura and took extreme left side of the road, in order to overtake ahead vehicle from left side and dashed against him and as a result, he fell down and sustained compression fracture of T12 Vertebra with traumatic with bowel and bladder involvement and other injuries all over the body. He has further stated that, immediately he was shifted to Parimala Hospital, wherein, he was treated as an inpatient for 36 days, X-ray was taken and confirmed the compression fracture of T12 with paraplegia. He has further stated that, this accident happened due to sole rash and negligent driving of the Auto Rickshaw bearing Registration No.KA-05-AD-5870 by its driver and he lodged a complaint before the Thalaghattapura Police and the said Police have registered a case as against the driver of the said Auto and in turn, the Police have taken up investigation and after the investigation, the said Police have filed a charge sheet as against the driver of the said Auto Rickshaw.
13. No doubt, the P.W.1 in his cross-examination has stated that, the accidental place was a crowd area with both vehicles and public and his friend Basavaraj, who is working in the factory at Yelachenahalli came to the accidental spot about ½ to ¾ hours and nobody had shifted him to nearby Hospital for treatment. He has further stated that, he does not know till today that, who was driving the said Auto Rickshaw and who was its owner at the time of accident and he does not know the name and address of his friend. Further, though the P.W.1 has stated in his cross-examination that, he has no hurdle to examine his friend Basavaraja as witness in the present petition, he has not examined the said friend Basavaraj as witness. He has further stated that, he has not seen till today the Auto Rickshaw bearing Registration No.KA-05-AD-5870 and he does not know that, which SCCH-7 16 M.V.C.NO.3903/2014 portion of the said Auto Rickshaw was damaged. Further, the Respondent No.1 has examined its Legal Officer as R.W.2, who has stated in his examination-in-chief that, the Respondent No.2 vehicle and its driver has been implicated in the alleged accident with respect to this case at the instance of the Petitioner in connivance with the jurisdictional Police and the Respondent No.2 has also co-operated with the Petitioner for illegal gain from the Insurance Company and the complainant has lodged a complaint before the Police on 10.08.2014, i.e., after lapse of one day from the alleged accident without sufficient reasons and the jurisdictional Police have filed a false charge sheet as against the Respondent No.2 for illegal gain. He has further stated that, the jurisdictional Police and the Respondent No.2 have not complied with the provisions of Section 158(6) and 134(c) of the Motor Vehicles Act, 1988, in this case and they have not informed their Insurance Company about occurrence of the alleged accident pertaining to this case as required under the provisions of Section 158(6) and 134(c) of the Motor Vehicles Act, 1988. It is pertinent to note here that, though the alleged accident was taken place on 09.08.2014 at 8.15 p.m., the Petitioner has lodged the complaint on 10.08.2014 at 4.00 p.m., which disclosed that, on the next day of the accident in question, the Petitioner has lodged a complaint before the Police about the accident. The Respondent No.1 has also examined the Investigating Officer as R.W.1, who has stated in his examination-in-chief that, Crime No.415/2014 relating to Thalaghattapura Police Station is registered by H.C.176 Rajegowda. He has further stated that, he has not visited the accidental spot and after receiving the records relating to the said crime, he has issued notice under Section 133 of the M.V. Act to the owner of the offending vehicle and received 'B' Register Extract and released the vehicle after verification. The R.W.1 has produced SCCH-7 17 M.V.C.NO.3903/2014 Ex.R.1 Police Memo dated 09.08.2014, Ex.R.2 Police Notice dated 05.09.2014, Ex.R.3 Reply dated 05.09.2014, Ex.R.4 MVI Report and Ex.R.5 Indemnity Bond dated 05.09.2014. He has further stated that, he has submitted the charge sheet on 10.10.2014 and on 08.09.2014, he has arrested the accused and the owner of the offending vehicle had not given details of the Insurance Policy and driving licence. In his cross-examination, he has further stated that, he has obtained 'B' Register Extract relating to the offending vehicle on 04.09.2014 and H.C.176 Rajegowda was deputed to trace out the offending vehicle and produced before him for further investigation and the said H.C.176 Rajegowda has traced out the offending vehicle and produced before the Police Station for inspection on 05.09.2014. He has further admitted that, Ex.R.5 Indemnity Bond is purchased on 12.08.2014 and the date 05.09.2014 is inserted by using whitener in Ex.R.5 Indemnity Bond and the said correction was made by him and as per Ex.R.3 Reply, the owner of the offending Auto Rickshaw has stated that, the accident was taken place on 09.05.2014. He has further stated that, T. Krishnappa himself informed him that, he was a driver of the offending Auto Rickshaw at the time of accident and thereafter, he had issued notice under Section 133 of M.V. Act to the said T. Krishnappa. The R.W.1 has produced Insurance Policy issued by Future General Insurance Company and 'B' Register Extract, which are marked at Ex.R.6 and Ex.R.7. He has further stated that, he has not complied Section 158(6) of the M.V. Act before filing the charge sheet and before filing the charge sheet, nobody has informed him that, such a person was a driver of the offending Auto Rickshaw at the time of accident.
14. But, based on the said evidence elicited from the mouth of P.W.1 and the evidence of R.W.1 and R.W.2, it cannot be SCCH-7 18 M.V.C.NO.3903/2014 thrown away the above said oral version of P.W.1, which has been stated by him in the examination-in-chief, as, to corroborate the oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 Vehicle Seizure Mahazar, Ex.P.5 Requisition dated 05.09.2014, Ex.P.6 Statement relating to Basavaraju S/o. Basavegowda, Ex.P.7 Charge Sheet, Ex.P.8 Wound Certificate and Ex.P.9 Discharge Summary and through P.W.2, who is a treated Doctor, has produced Ex.P.12 Case Sheet, which clearly disclosed that, the offending Auto Rickshaw bearing Registration No.KA-05-AD-5870 as well as its driver, i.e., the Respondent No.1, are very much involved in the said road traffic accident, which was taken place on 09.02.2014 at 8.45 p.m., which dashed to the Petitioner, when he was standing by the side of the road in order to cross the road near Kanakapura Main Road, near Raghuvanahalli Bus Stop, in front of Siddaganga School and due to the said impact, the Petitioner had sustained one grievous injury and two simple injuries and immediately after the accident, i.e., 10.05. p.m., he was admitted at Parimala Health Care Service to take treatment to the said accidental injuries and in Ex.P.2 Compliant itself, the Petitioner has disclosed the registration number of the offending Auto Rickshaw and Ex.8 Wound Certificate also disclosed about the registration number of the offending Auto Rickshaw, which are primary documents. More so, the Petitioner himself had lodged Ex.P.2 Complaint before the jurisdictional Police and the registration number of the said offending Auto Rickshaw was mentioned in Ex.P.1 FIR. It is also clear from the contents of the said material documents that, due to very high speed, rash and negligent manner of driving of the said offending Auto Rickshaw bearing Registration No.KA-05-AD- 5870 by the Respondent No.1 himself, the said road traffic accident was caused to the Petitioner. Furthermore, the P.W.1 in SCCH-7 19 M.V.C.NO.3903/2014 his cross-examination has clearly stated that, at the time of accident, nobody was along with him and after the accident, he was conscious and he told his friend Basavaraj that, the Auto Rickshaw caused the accident to him and after the accident, the driver of the Auto Rickshaw was stopped the Auto Rickshaw in the accidental spot and thereafter, he took it. It clearly goes to show that, after the accident, the Petitioner was conscious and as such, he was able to see the registration number of the offending Auto Rickshaw and as such, he has shown the registration number of the offending Auto Rickshaw in Ex.P.2 Complaint. Further, the P.W.1 in his cross-examination has clearly denied the suggestions put to him by the Respondent No.1 that, on 09.08.2014 at 8.15 p.m., when he was crossing Kanakapura Road, an unknown vehicle dashed to him and caused the accident, but, only to get compensation, himself in collusion with his friend Basavaraj and Respondent No.1 falsely implicated the Auto Rickshaw bearing Registration No.KA-05-AD-5870 and there is no nexus in between the injuries sustained to him and the said Auto Rickshaw and in collusion with Doctor relating to Parimala Hospital, he has created Ex.P.8 Wound Certificate, Ex.P.9 Discharge Summary, Ex.P.10 Medical Bill and Ex.P.11 Advance Receipts 2 in numbers. From this, it appears that, though the P.W.1 has been cross-examined by the Respondent No.1, nothing has been elicited from his mouth to consider his defence, which has been taken by him in the examination-in-chief of R.W.2. Further, though the R.W.2 in his cross-examination has stated that, they have conducted investigation through their investigator in respect of the accident in question, no scrap of paper has been produced by him to consider his say. He has further clearly stated that, they have no documents to show that, their company has submitted an application before the Hospital Authorities to furnish the copies of SCCH-7 20 M.V.C.NO.3903/2014 MLC Extract, Bills and Discharge Summary within 20 hours from the time of accident and the complaint was lodged in respect of the accident in question based on the statement of the Petitioner recorded in the Hospital by the Police itself and FIR is registered by the said Police and the registration number of the offending vehicle is mentioned in the said statement itself. He has further clearly admitted that, the Police have filed a charge sheet as against the driver of the offending Auto Rickshaw bearing Registration No.KA-05-AD-5870. Though the R.W.2 has stated in his cross-examination that, a false charge sheet is filed as against the driver of the offending Auto Rickshaw, he has further clearly stated that, they have not challenged the said charge sheet before the Hon'ble Appellate Court. Further, he has shown his ignorance about mentioning of the registration number of offending Auto Rickshaw in the Charge Sheet and Wound Certificate. From this, it appears that, without any basis, the Respondent No.1 has taken such defence in respect of involvement of the offending Auto Rickshaw in the accident in question. Further, it is clear from the evidence of R.W.1 and R.W.2 and the investigation conducted by the Investigating Officer in the criminal case that, though the Petitioner in Ex.P.2 Complaint itself has clearly mentioned the very registration number of the offending Auto Rickshaw bearing Registration No.KA-05-AD-5870 and the same has also been mentioned in Ex.P.8 Wound Certificate, the Investigation Officer had seized the said offending Auto Rickshaw on 05.09.2014, i.e., nearly a month after the accident by obtaining 'B' Register Extract on 04.09.2014 and it is the mistake on the part of the Investigation Officer and not on the part of the Petitioner. Further, the Petitioner though is a 3rd party to the said offending vehicle, he has clearly mentioned the registration number of the offending Auto Rickshaw, which caused accident to him, in the complaint SCCH-7 21 M.V.C.NO.3903/2014 itself and also informed to the Hospital Authority by stating the registration number of the offending Auto Rickshaw, which caused the accident to him on 09.08.2014 at 8.15 p.m. The R.W.1 in his cross-examination has stated that, he has not personally visited the accidental spot and he has not prepared the sketch relating to the said accidental spot and the Police intimation is received on 10.08.2014 and they have not entered in CD about the receipt of Police Intimation and on 10.08.2014 at 4.00 p.m., when the statement of the injured is recorded, they came to know about the involvement of the offending vehicle in the alleged accident and on the same day itself, the Head Constable has handed over the entire records to him for further investigation and at the time of drawing seizure panchanama, the Complainant and the eye witness Basavaraju were not called for identification of the offending Auto Rickshaw and H.C.176 Rajegowda has also brought the accused Krishnappa along with the offending Auto Rickshaw and the said Complainant and the eye witness Basavaraju have not stated in their statement about the identification of the accused, i.e., Krishnappa was driving the offending Auto Rickshaw at the time of accident. From this, it is made crystal clear that, the R.W.1 has not done proper investigation in the said case and though on 18.08.2014, he received the Police Intimation from the Hospital Authority itself and on 09.08.2014 and 10.08.2014 itself, he received the entire records from H.C.176 Rajegowda and the complaint and wound certificate clearly disclosed about the very registration number of the offending Auto Rickshaw bearing Registration No.KA-05-AD- 5870, he has collected the 'B' Register Extract relating to the said offending vehicle on 14.09.2014, i.e., nearly a lapse of one month from the date of accident and thereafter, he seized the vehicle. Further, except the oral version of R.W.1, no acceptable material SCCH-7 22 M.V.C.NO.3903/2014 evidence is adduced by the Respondent No.1 to show that, the offending Auto Rickshaw as well as its driver, i.e., the Respondent No.2 never involved in the said road traffic accident and they are falsely implicated in the said criminal case. Furthermore, though the notice was duly served on the Respondent No.2, he was remained absent and hence, he is placed as exparte. The non- appearance of the Respondent No.2 clearly implies that, he has indirectly admitted the entire case made out by the Petitioner in the present petition as against him.
15. The contents of Ex.P.1 FIR and Ex.P.2 Compliant clearly disclosed that, the Petitioner himself lodged Ex.P.2 Complaint before the Talaghattapura Police as against the driver of Auto Rickshaw bearing Registration No.KA-05-AD-5870 by alleging that, he came from Bangalore towards Kanakapura with very high speed, in a rash and negligent manner and took extreme left side of the road, in order to overtake ahead vehicle from left side and dashed against him and due to the said impact, he fell down and had sustained grievous injuries on his back and with the help of his friend Basavaraj, he was shifted to Parimala Hospital and as such, he prayed to take necessary legal action as against the driver of the offending Auto Rickshaw bearing Registration No.KA-05-AD-5870 and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the Auto Rickshaw for the offences punishable under Section 279 and 338 of IPC and Section 187 of IMV Act under Crime No.415/2014. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, though the accident was taken place on 09.08.2014 at 8.15 p.m., the Petitioner has lodged Ex.P.2 Complaint on 10.08.2014 at 4.00 p.m., when he was admitted in the Hospital and there is no inordinate delay in lodging the said SCCH-7 23 M.V.C.NO.3903/2014 Complaint by the Petitioner in respect of the said road traffic accident.
16. It is clear from the contents of Ex.P.3 Spot Panchanama, Ex.P.4 Vehicle Seizure Mahazar, Ex.P.5 Requisition dated 05.09.2014 and Ex.P.8 Statement relating to Basavaraju S/o. Basavegowda and Ex.R.1 Police Memo dated 09.08.2014, Ex.R.2 Police Notice dated 05.09.2014, Ex.R.3 Reply dated 05.09.2014, Ex.R.4 MVI Report and Ex.R.5 Indemnity Bond dated 05.09.2014 that, the Respondent No.2 is a R.C. Owner-Cum- Driver of the offending Auto Rickshaw bearing Registration No.KA- 05-AD-5870 at the time of accident and the said offending Auto Rickshaw as well as its driver, i.e., the Respondent No.2 are very much involved in the said road traffic accident, which dashed to the Petitioner, when he was standing by the side of the road in order to cross the road on Kanakapura Main Road, near Raghuvanahalli Bus Stop and the entire negligence is on the part of the Respondent No.2 in driving the said offending Auto Rickshaw and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident.
17. The contents of Ex.P.8 Wound Certificate disclosed that, with a history of road traffic accident on 09.08.2014 at about 8.15 p.m., by an Auto Rickshaw bearing Registration No.KA-05- AD-5870, near Siddaganga School, Raghuvanahalli Bus Stop, Kanakapura Main Road, the Petitioner sustained injuries to the back and he was admitted in Parimala Health Care Services Hospital and on examination, it is found that, he has sustained compression fracture of T 12 vertebra with Traumatic Paraplegia with bowel and bladder involvement, contusion over both the knees, tenderness, contusion over the right side of the forehead.
SCCH-7 24 M.V.C.NO.3903/201418. The contents of Ex.P.9 Discharge Summary, Ex.P.12 Case Sheet and Ex.P.14 X-ray Film along with Report further clearly disclosed that, with a history of road traffic accident by an Auto Rickshaw on 09.08.2014 at about 8.15 p.m., the Petitioner had sustained injury to the spine and was admitted on 09.08.2014 at 10.05 p.m., itself at Parimala Health Care Services and by admitting as an inpatient from 09.08.2014 to 13.09.2014, he took treatment to the said accidental injuries in the said Hospital. The P.W.2, who is a treated Doctor has clearly stated in his examination-in-chief that, he examined the Petitioner at Parimala Health Care Services on 09.08.2014 for burst Fracture of T12 Vertebrae with traumatic paraplegia due to road traffic accident at about 8.15 p.m., near Raghuvanahalli Bus Stop, Kanakapura Road, hit by Auto Rickshaw and he was treated as an inpatient from 09.08.2014 to 13.08.2014. He has further clearly stated in his cross-examination that, at the time of accident, the Petitioner was conscious and the Hospital Authority has intimated to Talaghattapura Police about the admission of the Petitioner in their Hospital with a history of road traffic accident and the Petitioner is having spinal cord damaged. From this medical evidence, it is made crystal clear that, the Petitioner had sustained one grievous injury and two simple injuries in the said road traffic accident.
19. The contents of Ex.P.7 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to very high speed, rash and negligent manner of driving of the offending Auto Rickshaw bearing Registration No.KA-05-AD- 5870 by its driver itself, i.e., the Respondent No.2, the said road traffic accident was taken place on Bangalore-Kanakapura Road, Raghuvanahalli Bus Stop, which dashed to the Petitioner, who SCCH-7 25 M.V.C.NO.3903/2014 was standing by the left side of footpath of the said road and due to the said impact, the Petitioner had sustained grievous injuries and the Respondent No.2 has not stopped the offending Auto Rickshaw on the accidental spot and fled away from the accidental spot and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the Respondent No.2 for the offences punishable under Section 279 and 338 of IPC and Section 187 of IMV Act. There is no allegation leveled by the Investigating Officer as against the Petitioner in Ex.P.7 Charge Sheet about this negligence in the commission of the said road traffic accident.
20. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the Respondent No.2 in driving the offending Auto Rickshaw bearing Registration No.KA-05-AD-5870 and the said offending Auto Rickshaw as well as its driver, i.e., the Respondent No.2, are very much involved in the said road traffic accident, which dashed to the Petitioner, when he was standing by the side of the road and due to the said impact, the Petitioner had sustained one grievous injury and two simple injuries. Accordingly, I answered Issue No.1 in the Affirmative.
21. ISSUE NO.2 :- The Petitioner has not produced any authenticated documents to consider his actual age at the time of accident. Even, the P.W.1, who is the Petitioner, has not disclosed in his examination-in-chief about his actual age at the time of accident. Even, according to the Petitioner, he was a driver and he is having a driving licence, no such driving licence is produced by the Petitioner to consider his actual age. However, the above said Police and medical documents clearly disclosed that, at the time of SCCH-7 26 M.V.C.NO.3903/2014 accident, the Petitioner was 27 years old. Therefore, in the absence of material documentary evidence, based on the said Police and medical documents, the age of the Petitioner is considered as 27 years at the time of accident.
22. The P.W.1 has stated that, prior to the accident, he was very hale and healthy and working as a Car driver and earning a sum of Rupees 12,000/- per month + daily bata of Rupees 50/- per day. No authenticated document is produced by the Petitioner to consider his avocation and income at the time of accident. Even, the Petitioner has not disclosed his educational qualification. Further, the Petitioner has not produced his driving licence to show that, at the time of accident, he was working as a Car driver. Even, the Petitioner has not disclosed the name of his employer. Hence, the said avocation and income as stated by the P.W.1 cannot be believed and accept. However, at the time of accident, the Petitioner was 27 years old, which disclosed his family status and by considering the same, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 8,000/- per month at the time of accident, which is reasonable and acceptable one. Hence, the notional income of the Petitioner is considered as Rupees 8,000/- per month at the time of accident.
23. The P.W.1 has stated that, the Doctor, who had treated him, opined that, the injuries caused permanent in nature and advised to undergo an operation and during the stay in the Hospital, he was operated and internal fixation was inserted to his back bone. He has further stated that, the Doctor further opined that, the injuries caused permanent in nature and it cannot be recovered fully throughout his life and discharged with an advise SCCH-7 27 M.V.C.NO.3903/2014 to come for follow-up treatment and he visited the Doctor once in 15 days for four times and once in a month even today. The P.W.2 has stated that, the Petitioner was underwent posterior decompression by open reduction and internal fixation with moss and Miami system in major O.T under GA and he was regular in follow-up. Admittedly, the Petitioner has not produced any authenticated medical documents to show that, he had taken follow-up treatment even after discharge from the Hospital as per the advise of the treated Doctor. But, the P.W.2, who is a treated Doctor, has clearly stated in his cross-examination that, after discharge till assessment of the disability, the Petitioner took follow-up treatment. Further, based on the contents of Ex.P.8 Wound Certificate, Ex.P.9 Discharge Summary, Ex.P.12 Case Sheet and Ex.P.14 X-ray Films, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner has sustained Compression fracture of T 12 vertebra with traumatic paraplegia with bowel and bladder involvement, contusion over both the knees, tenderness, contusion over the right side of the forehead, i.e., one grievous injury and two simple injuries and by admitting as an inpatient from 09.08.2014 to 13.09.2014, i.e., 37 days, he took treatment to the said accidental injuries at Parimala Health Care Services. In the said road traffic accident, the Petitioner had sustained injuries of spine. At the time of discharge, the Doctors have advised the Petitioner to take follow-up treatment, which is also clear from the contents of Ex.P.9 Discharge Summary and Ex.P.12 Case Sheet. By considering the nature of injuries and line of treatment given to the Petitioner, the Petitioner is very much required the regular follow-up treatment as per the advise of the treated Doctors, after the discharge from the Hospital. Hence, the evidence stated by the P.W.1 and P.W.2 in respect of follow-up treatment taken by the SCCH-7 28 M.V.C.NO.3903/2014 Petitioner after the discharge from the Hospital as per the advise of the treated Doctors at the time of discharge can very well be believed and accept.
24. The P.W.1 has stated that, due to the accidental injuries, he could not attend to his work so far and he became permanent disabled and he lost total sensation below the waist and it is very difficult to lead a day to day life without sufficient income. He has further stated that, now his earning capacity is totally reduced and due to total lost sensation below the waist his social life and marital life has become destroyed and hence himself and his family members are put to great hardship and mental agony. He has further stated that, prior to the accident, he was hale and healthy, due to this accidental injuries, he can't sit and stand without support of others, he can't walk, can't move on his own, can't lift weight, can't climb or down stairs, can't sit cross legged, can't sleep in one angle, he can't use Indian type of toilet, he lost total sensation below waist and he lost control over his nature calls and he always laying on the bed and he always using catheter while passing urine and he is always using waist belt and he cannot do any manual work. He has further stated that, now, he is fully depending upon others in all day to day activity.
25. The P.W.2 has stated that, he has examined the Petitioner recently for assessment of his current disability on 26.04.2015 and he complains of total loss of activity in both the lower limbs, he cannot stand, walk, climb and do any of his routine activities and he has to be carried as he cannot ambulate, he cannot voluntarily pass urine, stools and complains of sexual dysfunction and impotence. He has further stated that, on examination, he found the disabilities i.e., gibbus deformity of the SCCH-7 29 M.V.C.NO.3903/2014 spine at TL junction, grade 0 muscle power in both the lower limbs, sensation over both the lower limbs lost, reflexes exaggerated, movements of the spine nil, bladder catheterization in situ, bed sore measuring 10 cm by 12 cm over the back, spastic paraplegia both lower limbs, post operative scar over the TL region measuring 12 cms by 2 cms. He has further stated that, Check X- ray of the thoraco-lumbar spine shows old compression fracture of the 12th thoracic vertebra with implants in situ and osteoporotic changes seen in the vertebral bodies. He has further stated that, he is of the opinion with the said clinico-radiological finding based on the guidelines of the Association of Limb Manufacturing Corporation of India and NIOH, he assess the percentage of the permanent disability of the Petitioner at 100% for the spine and for the whole body. He has further stated that, he cannot have a normal life and due to impotence cannot have a married life and he cannot do any avocation to earn for his livelihood. The P.W.2 has produced Ex.P.13 OPD Examination Report.
26. As this Tribunal has already observed based on the above said medical documents that, in the said road traffic accident, the Petitioner had sustained Compression fracture of T 12 vertebra with traumatic paraplegia with bowel and bladder involvement, contusion over both the knees, tenderness, contusion over the right side of the forehead, i.e., one grievous injury and two simple injuries and by admitting as an inpatient from 09.08.2014 to 13.09.2014, i.e., 37 days, he took treatment to the said accidental injuries. As the Petitioner had sustained injury to spine, which is a back bone and he was operated and internal fixation was inserted, there is no exaggeration in the permanent disability of 100% for the spine and whole body as stated by the P.W.2, in respect of the Petitioner, which is arising out of the said SCCH-7 30 M.V.C.NO.3903/2014 accidental injuries. Further, the P.W.2 in his cross-examination has clearly stated that, the fractures are mal-united and if a person had sustained such kind of injury, he has to take regular follow-up treatment. Further, according to the Petitioner, at the time of accident, he was a driver and as such, the said nature of injury caused to the spine, definitely caused difficulty and disability to do his avocation. Therefore, the said extent of 100% disability for the spine and whole body as stated by the P.W.2 is believed and accept. Hence, the Petitioner is entitled for compensation under the following heads.
27. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 100%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 100%.
28. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 27 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 17.
29. As the Petitioner is suffering from permanent physical and functional disability of 100% to the whole body. The notional income of the Petitioner is already considered as Rupees 8,000/- per month. Therefore, the loss arising out of the said 100% disability for monthly income of Rupees 8,000/- by applying multiplier 17 comes to Rupees 16,32,000/-, i.e., (Rs.8,000/- x 12 x 17 x 100%).
SCCH-7 31 M.V.C.NO.3903/201430. As per Ex.P.8 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained one grievous injury and two simple injuries. The Petitioner was in the Hospital as an inpatient from 09.08.2014 to 13.09.2014, i.e., for 37 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 50,000/- towards pain and suffering.
31. As it is already observed that, the age of the Petitioner was 27 years. He has to lead remaining his entire life with 100% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 50,000/- towards loss of amenities of life to the Petitioner.
32. It is not disclosed by the Petitioner either in the petition or in his evidence that, he was unmarried as on the date of accident. In view of the absence of pleading as well as evidence, the Petitioner is not entitled for compensation towards loss of marriage prospects.
33. The Petitioner had sustained one grievous injury and two simple injuries and he was in the Hospital as an inpatient for 37 days and he could not do any work at least for 5 months and thereby, he deprived the income. Therefore, at the rate of Rupees 8,000/- per month, a sum of Rupees 40,000/- is awarded towards loss of income during the laid up period.
34. The P.W.1 has stated that, he visited the Doctor once in 15 days for four times and once in a month even today, by using a taxi and paying sum of Rupees 1,500/- per trip and he SCCH-7 32 M.V.C.NO.3903/2014 has spent a sum of Rupees 2,20,000/- for his treatment, conveyances, nourishment etc. In this regard, the Petitioner has produced Ex.P.10 Medical Bill, which is amounting of Rupees 1,76,772-41 and Ex.P.11 Advance Receipts 2 in numbers. The Petitioner has taken treatment at Parimala Health Care Center, wherein, he was taken treatment as an inpatient from 09.08.2014 to 13.09.2014, i.e., for 37 days. Considering the nature of the injuries and line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 1,76,772-41, which is rounded off Rupees 1,76,772/- to the Petitioner.
35. The P.W.1 has stated that, still he is under treatment and he need one more operation for removal of implants, for which, he had to incur sum of Rupees 70,000/- - Rupees 75,000/- and the Doctor has advice him to take regular treatment, otherwise, it will leads to major complications dangerous to his life. The P.W.2 has stated that, the Petitioner needs another surgery for removal of the spine implants and the cost of the treatment including medicines would be around Rupees 35,000/-. It is clearly mentioned in Ex.P.9 Discharge Summary about posterior decompression by open reduction and internal fixation with moss and Miami system was done in Major OT under General Anaesthesia and recovery uneventful, which disclosed about the insertion of implants in situ. The said implants have to be removed. Further, the Petitioner is suffering from permanent physical and functional disability of 100% to the whole body. Therefore, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.2 produced the estimation for removal of implants. However, this Tribunal feels SCCH-7 33 M.V.C.NO.3903/2014 that, it is just, proper and necessary to award future medical expenses of Rupees 25,000/- to the Petitioner.
36. As the Petitioner was taken treatment as an inpatient for 37 days, it is necessary to award a sum of Rupees 7,000/- towards conveyance charges, Rupees 7,000/- towards attendant charges and Rupees 10,000/- towards food, nourishment and diet charges etc.,
37. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. arising out of 100% Rs. 16,32,000-00 Disability
2. Pain and sufferings Rs. 50,000-00
3. Loss of amenities of life Rs. 50,000-00 Loss of income during laid
4. Rs. 40,000-00 up period
5. Actual medical expenses Rs. 1,76,772-00
6. Future medical expenses Rs. 25,000-00
7. Conveyance Rs. 7,000-00
8. Attendant Charges Rs. 7,000-00 Food, Nourishment &
9. Rs. 10,000-00 Diet charges TOTAL Rs. 19,97,772-00
38. In all, the Petitioner is entitled for total compensation of Rupees 19,97,772/- along with interest at the rate of 8% per annum on the above said sum (excluding future medical expenses of Rupees 25,000/-) from the date of petition till payment.
39. While answering Issue No.1, this Tribunal has already come to the conclusion that, the offending Auto Rickshaw bearing SCCH-7 34 M.V.C.NO.3903/2014 Registration No.KA-AD-5870 as well as its driver are very much involved in the said road traffic accident, wherein, the Petitioner had sustained one grievous injury and two simple injuries. The Petitioner in the cause title of the petition has mentioned that, the Respondent No.1 is the insurer and the Respondent No.2 is a R.C. Owner of the offending Auto Rickshaw bearing Registration No.KA- AD-5870. The Respondent No.1 in his written statement has clearly admitted that, the vehicle bearing Registration No.KA-AD- 5870 was covered at the material time under the policy of insurance issued by it subject to the terms, conditions, exceptions and limitations thereof and the confirmation of the compliance of Section 64VB of the Insurance Act, 1938. There is no allegation leveled as against the Respondent No.2 in Ex.P.7 Charge Sheet by the Investigating Officer that, at the time of accident, he was not having a valid and effective driving licence to drive such class of offending Auto Rickshaw. Ex.R.7 'B' Register Extract disclosed that, at the time of accident, the Respondent No.2 was a registered owner of the said offending Auto Rickshaw. From this material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was an insurer and the Respondent No.2 was a registered owner of the offending Auto Rickshaw bearing Registration No.KA-AD-5870 and its Insurance Policy was valid, which covers the date of accident.
40. The R.W.2 has stated in his examination-in-chief that, the Respondent No.2 has violated the terms and conditions to ply his vehicle in the public road beyond permitted area. But, no such allegation is made by the Investigating Officer as against the Respondent No.2 in Ex.P.7 Charge Sheet. The place of accident is Raghuvanahalli Bus Stop, Kanakapura Main Road, Bangalore South, Bangalore City, which is coming within the BBMP limit.
SCCH-7 35 M.V.C.NO.3903/2014Further, the R.W.1 in his cross-examination has clearly stated that, he doesn't know that, the accidental place coming under the jurisdiction of BBMP limit. Though he has stated that, he has no hurdle to produce the BBMP Map to show that, which places are covered under the limits of BBMP, the Respondent No.1 did not care to produce the same to prove that, the place of accident is not coming under the jurisdiction of BBMP limit. The R.W.1 has further clearly stated that, there is no allegation made in the charge sheet that, there is violation of permit condition. From this, it appears that, except the oral version of R.W.1, the Respondent No.1 is not having any documentary evidence to show that, at the time of accident, the offending Auto Rickshaw was not having a valid permit to ply it on the public road, i.e., on the accidental place. Hence, it can be safely held that, the Respondent No.1 has utterly failed to prove its specific defence in respect of consideration of his liability.
41. As this Tribunal has already observed and come to the conclusion that, the Respondent No.1 was an insurer and the Respondent No.2 was a R.C. Owner of the offending Auto Rickshaw bearing Registration No.KA-AD-5870 and its Insurance Policy was valid, which covers the date of accident. Under such circumstances, the Respondent No.1 being an insurer and the Respondent No.2 being a R.C. Owner of the offending Auto Rickshaw bearing Registration No.KA-AD-5870 are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since, the Respondent No.1 is an insurer, it shall indemnify the Respondent No.2. In view of the above said reasons, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioner are aptly applicable to the SCCH-7 36 M.V.C.NO.3903/2014 present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decision cited by the Learned Counsel appearing for the Respondent No.1 are not applicable to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
42. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 19,97,772/-
with interest at the rate of 8% p.a. (excluding future medical expenses of Rupees 25,000/-) from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, 50% shall be released in the name of the SCCH-7 37 M.V.C.NO.3903/2014 Petitioner through account payee cheque, on proper identification.
Remaining 50% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 5 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 5th day of April, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. Shivakumar. B. K.
P.W.2 : Dr. John Ebnezar
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Panchanama
Ex.P.4 : True copy of Vehicle Seizure Mahazar
Ex.P.5 : True copy of Requisition dated
05.09.2014
Ex.P.6 : True copy of Statement relating to
SCCH-7 38 M.V.C.NO.3903/2014
Basavaraju S/o. Basavegowda
Ex.P.7 : True copy of Charge Sheet
Ex.P.8 : True copy of Wound Certificate
Ex.P.9 : Discharge Summary
Ex.P.10 : Medical Bills
Ex.P.11 : Advance Receipts (2 in nos.)
Ex.P.12 : Case Sheet
Ex.P.13 : OPD Examination Report
Ex.P.14 : X-ray Films along with Reports (8 in nos.)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : B. C. Harish
R.W.2 : Pradeep. D. S.
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : True copy of Police Memo dated
09.08.2014
Ex.R.2 : True copy of Police Notice dated
05.09.2014
Ex.R.3 : True copy of Reply dated 05.09.2014
Ex.R.4 : True copy of MVI Report
Ex.R.5 True copy of Indemnity Bond dated
05.09.20147
Ex.R.6 : Insurance Policy
Ex.R.7 : 'B' Register Extract
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.