Bangalore District Court
Sri Babajan @ Babu Jan vs Sri Koneti Chinna Venkata Prasad on 16 November, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 16th day of November 2015
M.V.C. No.6154/2013
Petitioner Sri Babajan @ Babu Jan,
S/o Shaik Masthan,
Age 39 years,
Occ: Driver, R/o No.14,
IInd Cross, 5th Main,
Someshwara Nagar,
Yeshwanthapura,
Bangalore - 560 022.
(Sri Suresh M. Latur, Advocate)
V/s
Respondents 1. Sri Koneti Chinna Venkata Prasad,
S/o K. Tirupataiah,
R/o 1-142, Belum (V),
Kolimi Gundla (M) Karnool,
Andhra Pradesh - 518 123.
(Owner of lorry bearing Reg.
No.AP-21-TX-1879)
(Exparte)
2. The Regional Manager,
National Insurance Co. Ltd.,
Subbaram Complex, M.G. Road,
Bangalore - 560 001.
2 (SCCH-8) M.V.C. No.6154/2013
(Insurer of lorry bearing Reg.
No.AP-21-TX-1879)
(Policy cover note No.550503-
038453) (Valid from 21-07-2012 to
20-07-2013)
(Smt. Geetha Raj, Advocate)
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.8,00,000/- for the injuries sustained by him in a road traffic accident.
2. The brief facts of the claim petition are as under:
The petitioner in his claim petition has alleged that, on 26-06-2013 at about 10.40 p.m., he was proceeding on his motor cycle bearing No.KA-03-ER-578 from Shettipalli Darga slowly and cautiously by observing all traffic rules and regulations, when he was reached near Gorantla Koduru road, near Shettipalli, Chilamathur Mandal, the driver of the lorry bearing No.AP-21-TX-1879 was proceeding in front of his motor cycle with high
3 (SCCH-8) M.V.C. No.6154/2013 speed in a rash and negligent manner, without observing the traffic rules and regulations suddenly applied the break without giving any indication or signal. So, he lost the control over the motor cycle and dashed behind the lorry, due to which he has sustained grievous injuries. So, immediately he was shifted to Bagepalli Government Hospital, wherein he took the first aid treatment, later on he was shifted to Jeevan Hospital, Chickballapur, wherein he took the treatment, later on he was shifted to Bowring Hospital, Bangalore and he took the treatment as an inpatient by spending huge amount.
3. Prior to the accident he was hale and healthy working as a driver by getting monthly income of Rs.8,000/- and Rs.100/- as batta per day, due to the accidental injuries, he could not do the work as before. The accident in question was taken place on account of rash and negligent driving of the lorry driver. Thereby, Chilamathur Police have registered the case against the lorry driver in their police station Crime No.67/2013 for 4 (SCCH-8) M.V.C. No.6154/2013 the offences punishable u/s 337 of IPC. The respondent No.1 being the owner and respondent No.2 being the insurer are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondent No.1 did not appear nor file his written statement, as he was placed exparte. The respondent No.2 has appeared through his counsel and filed the written statement in which he has alleged that the claim petition filed by the petitioner is not maintainable in law or on facts and as on the date of the alleged accident, the offending vehicle was not having a valid permit and fitness certificate and the offending vehicle driver was not holding valid and effective driving licence to drove the same. The first respondent has entrusted the vehicle to the person who was not holding valid and effective driving licence. So, he has contravened the terms and conditions of the policy. Thus, he is not liable to pay any compensation to the petitioner and he has alleged that either the owner of the 5 (SCCH-8) M.V.C. No.6154/2013 offending vehicle nor the jurisdictional police have not complied the mandatory provisions under Section 134(C) and 158(6) of the M.V. Act in furnishing better particulars and he has not issued a policy in respect of the offending vehicle in favour of the first respondent and the petitioner has to prove the same by placing materials and the offending vehicle was not at all involved in the accident. The petitioner hand in glove with the police authorities falsely implicated the offending vehicle in order to make un-lawful gain and there is a inordinate delay in lodging the complaint. So, the entire claim of the petitioner is suspicious and the owner of the offending vehicle was not informed in respect of the occurrence of the accident that itself is clear that the accident was not taken place on account of rash and negligent driving of the offending vehicle driver and he has denied the averments made in column No.1 to 14A and 17 to 21 of the claim petition and he has also denied that the petitioner was proceeding on his motor cycle slowly and 6 (SCCH-8) M.V.C. No.6154/2013 cautiously by observing all traffic rules and regulations, the driver of the offending vehicle was proceeding in front of the motor cycle with high speed in a rash and negligent manner, without observing the traffic rules and regulations suddenly applied the break without giving any indication or signal. Thereby, the petitioner has lost the control and dashed behind the lorry and sustained grievous injuries and took the treatment in a different hospital by spending an amount of Rs.20,000/- and he has also denied the age, avocation and income of the petitioner and prays for reject the claim petition.
5. On the basis of the pleadings of the parties, following issues are framed.
1. Whether the petitioner proves that he has sustained grievous injuries as mentioned in column No.11, in a road traffic accident on 26-06-2013 at about 10.40 p.m., near Shettipalli, on Gorantla-Koduru road, Chilamathur Mandal, due to the rash and negligent driving of the driver of the lorry bearing registration NoAP-21-TX-1879? 7 (SCCH-8) M.V.C. No.6154/2013
2. Whether the respondent No.2 proves that this court has no jurisdiction to try this petition?
3. Whether petitioner is entitled for any compensation? If so to what extent and from whom?
4. What Order or Award?
6. The petitioner in order to prove his case has examined himself as PW1 and got marked the documents as Ex.P1 to Ex.P10 and he has examined two more witnesses on his behalf as PW2 and PW3 and got marked the documents as Ex.P11 to Ex.P14(a). The respondent No.2 has examined one witness on his behalf as RW1 and got marked the document as Ex.R1 and examined his Administrative Officer as RW2 and got marked the documents as Ex.R2 to Ex.R5.
7. Heard arguments on both side.
8. My finding on the above issues are as under:
Issue No.1: Affirmative
8 (SCCH-8) M.V.C. No.6154/2013
Issue No.2: Negative
Issue No.3: Partly affirmative
Issue No.4: As per the final order for the
following.
REASONS
9. Issue No.1:
The petitioner being said to be the injured has approached the court on the ground that on 26-06-2013 at about 10.40 p.m., he was proceeding on his motor cycle slowly and cautiously by observing all traffic rules and regulations, the driver of the offending vehicle was proceeding in front of the motor cycle with high speed in a rash and negligent manner, without observing the traffic rules and regulations suddenly applied the break without giving any indication or signal. Thereby, the petitioner has lost the control over the motor cycle and dashed behind the lorry and sustained grievous injuries and took the treatment in a different hospital by 9 (SCCH-8) M.V.C. No.6154/2013 spending an amount of Rs.65,000/-. Thereby, he has filed the instant claim petition against the respondents.
10. The petitioner in order to prove his case has filed his affidavit as his chief examination as PW1, in which has stated that on 26-06-2013 at about 10.40 p.m., he was proceeding on his motor cycle bearing No.KA-03-ER-578 from Shettipalli Darga slowly and cautiously by observing all traffic rules and regulations, when he was reached near Gorantla Koduru road, near Shettipalli, Chilamathur Mandal, the driver of the lorry bearing No.AP-21-TX-1879 was proceeding in front of his motor cycle with high speed in a rash and negligent manner, without observing the traffic rules and regulations suddenly applied the break, without giving any indication or signal. So, he lost the control over the motor cycle and dashed behind the lorry, due to which he has sustained grievous injuries. So, immediately he was shifted to Bagepalli Government Hospital, wherein he took the first aid treatment, later on he was shifted to 10 (SCCH-8) M.V.C. No.6154/2013 Jeevan Hospital, Chickballapur, wherein he took the treatment for one day, later on he was shifted to Bowring Hospital, Bangalore, wherein he took the treatment as an inpatient by spending huge amount. The accident in question was taken place on account of rash and negligent driving of the lorry driver. Thereby, Chilamathur Police have registered the case against the lorry driver in their police station Crime No.67/2013 for the offences punishable u/s 337 of IPC. The PW1 in his cross examination has denied that as on the date of the alleged accident, he rode the motor cycle with high speed in a rash and negligent manner dashed behind the lorry. So, on his own negligence, the accident was occurred and unknown vehicle has caused the accident, as he has dashed against the unknown vehicle, that is the reason why, there is a delay in lodging the complaint for a period of 30 days and colluding with the police has lodge the false case against the offending vehicle driver. 11 (SCCH-8) M.V.C. No.6154/2013
11. The PW3 who is said to be the eye witness of the accident in his evidence has stated that on 26-06-2013 at about 10.40 p.m., he was proceeding on his motor cycle and the Babajan was also proceeding on his motor cycle from Shettipalli towards Chickballapur, when they were reached half kilometer from the Shettipalli, the driver of the lorry bearing No.AP-21-TX-1879 has drove the same with high speed in a rash and negligent manner, without observing the traffic rules and regulations suddenly applied the break without giving any signal nor indication. So, Babajan dashed against the lorry from behind, due to which he has sustained grievous injuries. So, immediately he was shifted to Government Hospital, Bagepalli through 108 ambulance, wherein he took the first aid treatment. The accident was occurred on account of rash and negligent driving of the lorry driver. So, Chilamathur Police have registered the case against the lorry driver in their police station Crime No.67/2013 for the offences punishable u/s 338 of IPC. 12 (SCCH-8) M.V.C. No.6154/2013 The PW3 in his cross examination has admitted that the injured is not his relative and they are the resident of different villages and as on the date of the alleged accident, he had been to darga, after the Pooja, he was proceeding towards his village side and he was following the vehicle of the Babajan and one Shafi was the pillion rider. The driver of the lorry has suddenly applied the break, thereby the accident was occurred. Thus, immediately after the accident, the injured was shifted to Bagepalli Government Hospital, later on he was shifted to Bangalore hospital for higher treatment. After one month from the accident, the police have called him to the police station and recorded the statement and the police have recorded the statement of one Babajan and Shafi on the very day and he has denied that with an intention to help the petitioner, he has deposing false facts.
12. The RW2 being the Administrative Officer of the respondent No.2 in his evidence has stated that the offending vehicle was not at all involved in the accident, 13 (SCCH-8) M.V.C. No.6154/2013 but the petitioner in colluding with the police has falsely implicated the vehicle. The RW2 in his cross examination has admitted that the final report has been filed against the offending vehicle driver and they have not challenged the final report before the higher court.
13. The petitioner in support of his oral evidence has produced the documents marked as Ex.P1 to Ex.P14(a). Ex.P2 is the information filed by the petitioner in which has stated that he is the resident of Yeshwanthpur, Bangalore. On 26-06-2013 he had been to Shettipalli Darga, while returning back to Chickballapura at about 10.40 p.m., on his motor cycle bearing No.KA-03-ER-578 just after ½ kilometer from Shettipalli, the driver of the lorry bearing No.AP-21-TX- 1879 has drove the same with high speed in a rash and negligent manner in front of his motor cycle, suddenly applied the break, without giving any signal has stopped the lorry. So, he lost the control over the two wheeler and dashed against the lorry, due to which he has sustained 14 (SCCH-8) M.V.C. No.6154/2013 grievous injuries. So, he was shifted to Bagepalli Government Hospital with the help of the public, later on he was shifted to Bowring Hospital, Bangalore for further treatment, still he is under treatment and there were no any other person to look after him in the hospital, thereby the delay was caused in lodging the complaint and the accident was occurred on account of rash and negligent driving of the lorry driver. So based on the information Chilamathur Police have registered the case against the lorry driver in their police station Crime No.67/2013 for the offences punishable u/s 337 of IPC. The learned counsel for the respondent has cross examined the PW1, but nothing is elicited to disbelieve his evidence. It is the specific case of the respondent that the offending vehicle was not at all involved in the accident nor the offending vehicle driver has caused the accident. The petitioner in colluding with the police has falsely implicated the vehicle in order to get the compenstion. The learned counsel for the respondent 15 (SCCH-8) M.V.C. No.6154/2013 has cross examined the PW1 and suggested that he rode the vehicle with high speed in a rash and negligent manner dashed behind the lorry. So, the accident was occurred on his own negligence for which he has denied the same. So, for the proper appreciation of the suggestion to the PW1 by the learned counsel for the respondent, it is just and necessary for reproduction reads like thus;
D ¢£À £Á£ÀÄ ªÉÆÃlgï ¸ÉÊPÀ¯ï£ÀÄß Cw ªÉÃUÀ ªÀÄvÀÄÛ CeÁUÀgÀÄPÀvɬÄAzÀ £Àqɹ £Á£Éà ºÉÆÃV ¯ÁjAiÀÄ »A§¢UÉ C¥ÀWÁvÀ ¥Àr¹zÉÝ CAzÀgÉ ¸ÀjAiÀÄ®è. ¯ÁjAiÀÄ »A¢£À §A¥ÀgïUÉ £À£Àß ªÉÆÃlgï ¸ÉÊP¯ À ï C¥ÀWÁvÀ ¥Àr¹vÀÄÛ.
14. The above suggestion of the learned counsel for the respondent clearly reflects that the accident was occurred in between two vehicles, one is motor cycle and another is lorry. If at all the accident was not occurred in between the vehicles i.e., lorry and the motor cycle question of suggestion to the PW1, that the accident was occurred on account of rash and negligent riding of the 16 (SCCH-8) M.V.C. No.6154/2013 petitioner does not arise. So, the suggestion made by the learned counsel for the respondent to the PW1 as stated above reflects that the accident was occurred in between to vehicles i.e., motor cycle and the lorry and the petitioner has dashed behind the lorry in view of the suggestion made by the learned counsel for the respondent. Now, the Tribunal has to consider whether the accident was occurred on account of rash and negligent riding of the petitioner or on account of rash and negligent driving of the offending vehicle driver, as the learned counsel for the respondent in one breath has submitted that the offending vehicle was not at all involved in the accident, but in another breath has suggested that the petitioner himself has caused the accident, but the suggestion of the learned counsel for the respondent to the PW1 as stated above reflects that the accident was occurred and the petitioner has dashed behind the lorry, as the driver of the lorry has drove the same with high speed in a rash and negligent manner, 17 (SCCH-8) M.V.C. No.6154/2013 without giving any indication nor signal has stopped the lorry, that is the reason why, the petitioner has dashed behind the lorry, it does not mean that the accident was occurred on account of rash and negligent riding of the petitioner, as the RW2 being the Administrative Officer of the second respondent in his cross examination has categorically admitted that the police have charge sheeted against the offending vehicle driver and they have not challenged the charge sheet filed against the offending vehicle driver, that itself is clear that after the investigation, the I.O., has found that the accident in question was taken place on account of rash and negligent driving of the offending vehicle driver, that is the reason why, the I.O., has charge sheeted against the offending vehicle driver and the charge sheet is remained unchallenged and moreover Ex.P1 and Ex.P2 are the FIR and the complaint also remained unchallenged. If at all the accident was not occurred on account of rash and negligent driving of the offending vehicle driver and the 18 (SCCH-8) M.V.C. No.6154/2013 vehicle was not at all involved in the accident, the driver of the offending vehicle is the best witness to say about the involvement of the vehicle, but the reasons best known to the respondent has not examined the offending vehicle driver nor examined the I.O., to establish that the offending vehicle was not at all involved in the accident. In the absence of the materials on record from the respondent side, it is very difficult to believe the defence of the respondent that the offending vehicle was not at all involved in the accident. On the other hand the materials on record clearly reflects that the offending vehicle was involved in the accident and the offending vehicle driver has caused the accident, that is the reason why, the petitioner has sustained the injuries.
15. The learned counsel for the respondent has suggested the PW1 that he has caused the accident against unknown vehicle and filed the false case against the lorry driver, if that is so, why the respondent has not taken any steps to examine the lorry driver to establish 19 (SCCH-8) M.V.C. No.6154/2013 his defence, if that is so, the matter would have different. So, except suggestion to the PW1 nothing is placed on record to substantiate his defence. The learned counsel for the respondent has much argued that the petitioner has not at all sustained any injuries in a road traffic accident said to have been taken place on 26-06-2013 and the said counsel has drawn the court attention on Ex.P12(a). So, for the proper appreciation of the recitals appeared in the Ex.P12(a), it is just and necessary for reproduction reads like thus;
Where the two wheeler he was riding fell when another vehicle approached him on the other side Gorantla main road.
16. The above recitals as appeared in the Ex.P12(a) reflects that there is an accident in between to vehicles, that is the reason why, the petitioner has sustained the injuries. So, this court has drawn its attention on Ex.R1 which was produced by the witness of the respondent reads like thus;
20 (SCCH-8) M.V.C. No.6154/2013 Dated 26-06-2013: Alleged H/o RTA at 10.40 p.m., on 26-06-2013 while patient travelling through two wheeler lorry hit at Satpalli, Andhra Pradesh.
17. The above recitals as appeared in the Ex.R1 clearly reflects that one lorry hit the two wheeler, that is the reason why, the petitioner has sustained the injuries. It is an admitted fact, the petitioner in his claim petition has clearly stated that soon after the accident has got admitted to the Bagepalli Government Hospital, wherein he took the first aid treatment. So, the Ex.R1 is initial document in which it is clear that the lorry hit the two wheeler, thereby he has sustained the injuries. It is the specific case of the petitioner that the lorry driver without giving any signal or indication has suddenly applied the break, that is the reason why, the accident was occurred. So, the recitals as appeared in the Ex.R1 corroborate the case of the petitioner. Thus, the document which was relied by the learned counsel for 21 (SCCH-8) M.V.C. No.6154/2013 the respondent is the subsequent document, merely on the ground in a subsequent document one vehicle was approached him, it does not mean that he has not sustained the injuries in a road traffic accident, as the Ex.R1 clearly reflects that the petitioner has sustained the injuries in a road traffic accident said to have been taken place on 26-06-2013. Therefore, the arguments advanced by the learned counsel for the respondent on this aspect holds no water.
18. The learned counsel for the respondent has drawn the court attention on the judgment of the Hon'ble High Court passed in MFA 1390/2011. On careful perusal of the above said judgment, in the said judgment, the insurance company has filed the appeal against the award passed by the Tribunal on the ground that the offending vehicle was not at all involved in the accident, it was falsely implicated in order to get the compensation. In the said judgment, the claimant has alleged that he has sustained the injury, when he was 22 (SCCH-8) M.V.C. No.6154/2013 walking on the road hit by the motor cycle, but the accident register extract marked as Ex.R2 reveals that at the first instance history of injury was given as "self fall from bike at 1.00 p.m., on 01-08-2009 at Chowdamma Temple in Holalkere Taluk". Subsequently, the words "self fall" were scored off and the word "RTA" is overwritten. But in the instant case, it is not the case of the petitioner that he was fallen from the bike nor subsequently scored off self fall and overwritten as RTA. So, I do respect to the judgment relied by the learned counsel for the respondent, but the facts and circumstances of the present case and the above said judgment are different.
19. The learned counsel for the respondent has much argued that there is a delay in lodging the complaint clearly reflects that the petitioner in colluding with the police has falsely implicated the offenidng vehicle in order to get the compensation. Ex.P2 is the information filed by the very petitioner in which it is clear 23 (SCCH-8) M.V.C. No.6154/2013 that he was in the hospital soon after the accident and no one look after him in the hospital, thereby, the delay was caused in lodging the complaint. Ex.R1 is the document which was produced by the respondent clearly reflects that the petitioner has sustained the injury in a road traffic accident and took the treatment at Bagepalli Government Hospital. Ex.P6 is the discharge summary reflects that the petitioner has took the treatment at Bowring Hospital, Bangalore and underwent surgery and discharged from the hospital on 02-08-2013 and he has sent the information through his cousin brother on 25- 07-2013 during the hospitalization. Thus, this court drawn its attention on the judgment of the Hon'ble Supreme Court reported in (2011) 4 SC 693 in between Ravi vs. Badrinarayan and others reads like thus;
A. Motor Vehicles Act, 1988 - Ss. 166, 168 and 173 - Delay in lodging FIR -
Dismissal of claim petition based thereon - Legality of - Held, delay in lodging FIR 24 (SCCH-8) M.V.C. No.6154/2013 Cannot be a ground to doubt claimant's case in genuine case - In Indian conditions, it is not expected that a person would to rush to police station after accident - Treatment of victim is given priority over lodging FIR - Kith and kin of victim are not expected to act mechanically with promptitude in lodging FIR - Hence, delay in lodging FIR not a ground to dismiss claim petition - Criminal Procedure Code, 1973, S.154.
20. On careful perusal of the above said decision, in the said decision the accident was taken place on 07-10- 2001 at about 8.30 a.m., the father of the claimant has filed the complaint on 26-01-2002 at about 12.15 p.m., almost 3 months 19 days delay in lodging the complaint. The claim petition filed by the petitioner was came to be dismissed by the Tribunal on the ground that there is a delay in lodging the complaint and the claimant has fail to establish on the fateful day, the truck was involved in the motor road accident causing the injuries to him. Thereby, the claimant has filed the appeal before the Hon'ble High Court of Judicature of Rajasthan, Jaipur 25 (SCCH-8) M.V.C. No.6154/2013 and the said appeal was also came to be dismissed. Thereby, the claimant has filed the appeal before the Hon'ble Supreme Court and their lordship held that delay in lodging the FIR cannot be a ground to doubt claimant's case and it is not expected that a person would to rush to police station after accident. Kith and kin of victim are not expected to act mechanically with promptitude in lodging FIR. So, delay in lodging FIR is not a ground to dismiss claim petition. Thereby, the appeal was came to be allowed.
21. In the instant case also, the petitioner has clearly stated in the Ex.P2, why he has not filed the complaint soon after the accident, that itself is clear that the petitioner soon after the accident has got admitted to the hospital for treatment and no one was look after him in the hospital. Thereby, he could not lodge the complaint against the offending vehicle driver. So, the petitioner has properly explained about the delay in 26 (SCCH-8) M.V.C. No.6154/2013 lodging the complaint. Therefore, the decision as stated above is directly applicable to the case on hand.
22. Ex.P3 is the wound certificate issued by the Bagepalli Government Hospital in which it is clear that the petitioner has sustained the injuries in a road traffic accident said to have been taken place on 26-06-2013. Though, the sketch was not marked through the petitioner or the respondent, but it is in the file clearly reflects that the accident was occurred on account of rash and negligent driving of the offending vehicle driver, as he has suddenly applied the break without giving any indication or signal. The PW3 being the eye witness in his evidence has clearly stated that the accident in question was taken place on account of rash and negligent driving of the offending vehicle driver, as he has suddenly applied the break, without giving any signal nor indication. Thereby, the petitioner has lost the control over the two wheeler and dashed behind the lorry. Ex.P6 and Ex.P7 are clearly reflects that the 27 (SCCH-8) M.V.C. No.6154/2013 petitioner has took the treatment as an inpatient in connection of the injuries sustained by him in a road traffic accident. Ex.P4 is the final report filed by the I.O., clearly reflects that the I.O., after conducting the investigation has charge sheeted against the offending vehicle driver on the ground that the accident in question was taken place on account of rash and negligent driving of the offending vehicle driver, as the RW2 being the Administrative Officer of the respondent No.2 in his evidence has categorically admitted that they have not challenged the final report filed against the offending vehicle driver. If at all the vehicle was not at all involved in the accident and the offending vehicle driver was not caused the accident nothing is prevented to the respondent to challenge the final report filed against the offending vehicle driver. Ex.P10 to Ex.P14(a) are clearly reflects that the petitioner has took the treatment as an inpatient in connection of the injuries sustained by him in a road traffic accident said to have been taken place 28 (SCCH-8) M.V.C. No.6154/2013 on 26-06-2013 and underwent surgery. So, the documents marked as Ex.P1 to Ex.P14(a) are coupled with the oral evidence of PW1 and PW3. Though, the respondent No.2 has examined the RW1 and RW2 on his behalf, but their evidence will not help the respondent to disprove the oral and documentary evidence of the petitioner. On the other hand, the petitioner has proved his case through oral and documentary evidence that the accident in question was taken place on account of rash and negligent driving of the offending vehicle driver. Hence, I answer this issue in the affirmative.
23. Issue No.2:
The second respondent being the insurer of the offending vehicle in his written statement has taken up the contention that this Tribunal has no jurisdiction to adjudicate the matter which is in dispute, but whereas the petitioner himself in his claim petition has clearly stated that he is the resident of Bangalore city and it is not the case of the respondent that the petitioner is not 29 (SCCH-8) M.V.C. No.6154/2013 the resident of Bangalore City nor placed any materials to substantiate his defence. So, in the absence of the materials on record, it is clear that the petitioner is the resident of Bangalore City. So, this Tribunal having a jurisdiction to adjudicate the matter which is in dispute and the second respondent has utterly failed to establish through oral and documentary evidence that this Tribunal has no jurisdiction to adjudicate the matter which is in dispute. Hence, I answer this issue in the Negative.
24. Issue No.3:
The PW1 being the injured in his evidence has clearly stated that on 26-06-2013 at about 10.40 p.m., he was proceeding on his motor cycle slowly and cautiously by observing all traffic rules and regulations, the driver of the offending vehicle was proceeding in front of the motor cycle with high speed in a rash and negligent manner, without observing the traffic rules and regulations suddenly applied the break without giving 30 (SCCH-8) M.V.C. No.6154/2013 any indication or signal. So, he lost the control over the motor cycle and dashed behind the lorry, as a result he has sustained the following injuries;
1) Closed segmental fracture both bones of right leg.
2) Left elbow fracture subluxation, injuries to face, left shoulder and other grievous injuries all over the body.
25. So, immediately he was shifted to Bagepalli government Hospital, wherein he took the first aid treatment, later on he was shifted to Jeevan Hospital, Chickballapur, wherein he took the treatment for his right leg, later on he was shifted to Bowring and Lady Curzon Hospital, wherein he took the treatment as an inpatient from 29-06-2013 to 02-08-2013, during the course of treatment he was underwent operation and discharged from the hospital with an advise for follow up treatment and he took the treatment as an outpatient once in a week for 2 months and once in a month for 5 31 (SCCH-8) M.V.C. No.6154/2013 months, but inspite of best treatment, he could not come to the normal position.
26. Prior to the accident he was hale and healthy working as a driver by getting monthly income of Rs.8,000/- and Rs.100/- as batta per day, due to the accidental injuries, he could not do the work as before, as he is facing lot of financial problems due to the loss of earnings and he could not maintain the family and he cannot squat on the ground nor climb the stairs and could not weight on his right leg nor fold his right leg freely, even he could not fold left hand freely and he is getting pain in his left shoulder. The PW1 in his cross examination has denied that he has not sustained any injuries as alleged in the claim petition and the medical bills placed before the court are created in order to get the compensation and he was not working as a driver nor getting the income of Rs.8,000/- per month nor bata of Rs.100/- per day.
32 (SCCH-8) M.V.C. No.6154/2013
27. The PW2 being the Orthopaedic Surgeon at Bowring and Lady Curzon Hospital, in his evidence has stated that the petitioner has met with an accident said to have been taken place on 26-06-2013, as he has sustained the following injuries;
1) Closed segmental fractures of both bones (Tibia and fibula) of left leg.
28. So, he was underwent CRIF (Closed reduction internal fixation) with proximal tibial. LCP, MIPO (Locking compression plate-minimally invasive percutaneous plate osteosynthesis) and recently on 17- 09-2014 he has examined the petitioner for the purpose of disability assessment and found the following difficulties facing by the petitioner;
1) Difficulty to stand and bear weight on right leg.
2) Difficulty to sit cross legged, to squat.
3) Difficulty to climb up and down the stair case.
4) Difficulty to walk on the slope.
5) Difficulty to walk on the plain surface. 33 (SCCH-8) M.V.C. No.6154/2013
29. So, the petitioner has sustained permanent residual physical disability to an extent of 17.75% of right lower limb and disability of left upper limb to an extent of 18.4% in total 36.15% and whole body disability to an extent of 17.75%. The PW2 in his cross- examination has admitted that himself and the team of doctor were treated the petitioner and admitted that the Ex.P3 is not reflecting the fracture of elbow and the petitioner was underwent surgery in respect of left leg and he was not underwent any surgery in respect of left elbow and as per Ex.P12 in serial No.27 document, the petitioner was came to be discharged from the hospital against the medical advise and if any person while proceeding in the two wheeler falls from the bike, he may be sustained the injuries as shown in the wound certificate and tibia fracture is mal united and fibula fracture is united and he has denied that the petitioner has not facing any difficulties due to the accidental injuries.
34 (SCCH-8) M.V.C. No.6154/2013
30. The RW1 being the Medical Officer of the Government Hospital, Bagepalli in his evidence has clearly stated that the petitioner has got admitted to the Government Hospital, Bagepalli and took the treatment.
31. The PW1 being the injured in his evidence has clearly stated about the injuries sustained by him in a road traffic accident and also stated about the difficulties facing by him after the accident. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident as well as the treatment taken by the petitioner as an inpatient and outpatient. So, the evidence of the PW2 corroborate the evidence of the PW1. Ex.P3 is the wound certificate issued by the Bagepalli Government Hospital clearly reflects that the petitioner has sustained the following injuries;
1) Segmental fracture of right leg bone.
2) Subluxation of left elbow.
35 (SCCH-8) M.V.C. No.6154/2013
32. So, the above said injuries are grievous in nature. Ex.P6 is the discharge summary clearly reflects that the petitioner soon after the accident has got admitted to the Bowring and Lady Curzon Hospital, Bangalore, wherein he took the treatment as an inpatient from 29-06-2013 to 02-08-2013 for a period of 35 days and he was underwent surgery. Ex.P7 reflects that the petitioner has took the treatment as an outpatient at Bowring and Lady Curzon Hospital, Bangalore. Ex.P8 is the extract of the driving licence clearly reflects that the petitioner was holding driving licence to drive the motor cycle with gear, light motor vehicle and tractor. Ex.P10 to Ex.P14 are clearly reflects that the petitioner soon after the accident has got admitted to the hospital and took the treatment as an inpatient and outpatient in connection of the injuries sustained by him in a road traffic accident and underwent surgery. So considering the injuries sustained by the petitioner in a road traffic accident and the evidence of PW1 and PW2 as well as 36 (SCCH-8) M.V.C. No.6154/2013 duration of treatment, it is just and necessary to grant just compensation to the petitioner in the following heads;
a)Pain and suffering.
The PW1 being the injured in his evidence has clearly stated that he has sustained grievous injuries in a road traffic accident said to have been taken place on 26- 06-2013 and took the treatment as an inpatient for a period of 35 days and he has underwent surgery. PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident and the treatment taken by the petitioner as an inpatient and outpatient and he has also stated that himself and the team of the doctors were conducted the surgery and the fibula fracture is united, but tibia fracture is mal united. So considering the evidence of the PW1 and PW2 and the injuries sustained by the petitioner as well as the duration of treatment he would have sustained pain and agony for which, it is just 37 (SCCH-8) M.V.C. No.6154/2013 and necessary to award compensation of Rs.60,000/- for the above head, it will meet the ends of justice. Hence, Rs.60,000/- is awarded for the above head.
b) Loss of income during laid up period:
The PW1 being the injured in his evidence has stated that prior to the accident he was hale and healthy working as a driver by getting monthly income of Rs.8,000/- and Rs.100/- as batta per day, due to the accidental injuries, he could not do the work as before. Ex.P8 is the extract of the driving licence clearly reflects that the petitioner was holding a driving licence to drive the motor cycle with gear, light motor vehicle and tractor. But the reasons best known to him has not examined any independent witness nor examined the person under whom he was working as a driver to show that prior to the accident he was working as a driver by getting monthly income of Rs.8,000/- and Rs.100/- as batta per day. In the absence of the materials on record, it is very difficult to believe the income of the petitioner as alleged
38 (SCCH-8) M.V.C. No.6154/2013 in the claim petition. So considering the age and skill of the petitioner and the present life condition, it is just and necessary to consider the monthly notional income of Rs.7,000/- it will meet the ends of justice. Ex.P3 is the wound certificate clearly reflects that the petitioner has sustained grievous injuries. Ex.P6 is the discharge card clearly reflects that he has sustained the grievous injuries and took the treatment as an inpatient for a period of 35 days. So, the petitioner might have lost income for a period of four months. So four months income comes to Rs.28,000/-. So Rs.28,000/- is granted for the above head.
c) Medical expenses The PW1 being the injured in his evidence has stated that he has sustained the fracture of tibia and fibula in a road traffic accident and took the treatment as an inpatient by spending huge amount of Rs.65,000/-, but on record the petitioner has produced the medical bills worth of Rs.26,766/-. Though the learned counsel 39 (SCCH-8) M.V.C. No.6154/2013 for the respondent has disputed the medical bills produced by the petitioner, but nothing is placed on record to show that the medical bills produced by the petitioner are created nor fabricated in order to get the compensation. So, in the absence of the materials on record, it is clear that the petitioner has took the treatment in connection of the injuries sustained by him in a road traffic accident. Therefore, Rs.26,766/- is granted for the above head.
d) Loss of future earning:
The PW1 being the injured in his evidence has clearly stated that he has sustained fracture of tibia and fibula in a road traffic accident said to have been taken place on 26-06-2013 and took the treatment as an inpatient for a period of 35 days and he was underwent surgery, but inspite of best treatment, he could not come to the normal position. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the
40 (SCCH-8) M.V.C. No.6154/2013 accident. According to him the petitioner has sustained permanent residual physical disability of right lower limb to an extent of 17.75% and disability of left upper limb to an extent of 18.4% i.e., total 36.5% of whole body. The PW2 in his cross examination has admitted that the tibia fracture is mal united and fibula fracture is united.
The learned counsel for the petitioner has drawn the court attention on the judgment of the Hon'ble Supreme Court reported in 2015 ACJ 721 in between Jakir Hussein vs. Sabir and others. On careful perusal of the above said decision, in the said decision the driver has sustained the compound fractures in right arm and hand completely crushed and deformed. So 100% functional disability was taken into consideration. But in the instant case, it is not the case of the petitioner that he has sustained compound fractures in right arm and hand completely crushed and deformed. So, I do respect to the decision relied by the learned counsel for the petitioner, but the facts and circumstances of the present case and 41 (SCCH-8) M.V.C. No.6154/2013 the decision relied by the learned counsel for the petitioner are different.
So, considering the evidence of the PW1 and PW2 and the materials on record and the fracture of tibia and fibula and the present status of both fracture and duration of treatment as well as his avocation, it is just and necessary to consider the disability of 15% of the whole body instead of 36.15%, it will meet the ends of justice. Ex.P3 is the wound certificate and Ex.P6 is the discharge summary clearly reflects that as on the date of the alleged accident, the petitioner was aged about 36 years, but whereas Ex.P8 is the extract of the driving licence in which it is clear that the date of birth of the petitioner has been shown as 30-05-1974. So, if the date of birth as shown in the Ex.P8 is taken into consideration as on the date of the alleged accident, the petitioner was aged about 39 years. The petitioner in his claim petition has clearly stated that as on the date of the alleged accident, he was aged about 39 years. Therefore, his age 42 (SCCH-8) M.V.C. No.6154/2013 is taken into consideration as 39 years as on the date of the alleged accident. So by virtue of the Sarlaverma Vs. Delhi Transport Corporation Ltd., reported in 2009 ACJ 1298 the multiplier applicable is 15. So the loss of future earning is works out as under;
Rs.7,000X12X15X15/100=1,89,000/-.
Hence, the petitioner is entitled for Rs.1,89,000/- for the above head.
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
The PW1 being the injured in his evidence has clearly stated that he has sustained the fracture of tibia and fibula in a road traffic accident said to have been taken place on 26-06-2013 and took the treatment as an inpatient for a period of 35 days and he has also took the treatment as an outpatient and underwent surgery. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident and he has also stated about
43 (SCCH-8) M.V.C. No.6154/2013 the treatment taken by the petitioner as an inpatient and outpatient. So considering the evidence of PW1 and PW2 and duration of treatment as well as the complaints and disability of the petitioner after the accident, it is just and necessary to grant Rs.30,000/- for the above head, it will meet the ends of justice. So Rs.30,000/- is granted for the above head.
f) Future medical expenses:
The PW1 being the injured in his evidence has clearly stated that he has sustained grievous injuries and underwent surgery and implants are in situ. So one more surgery is required for removal of implants. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated that the petitioner has to undergo 2 more operations for removal of implants from right tibia and non union of radial head, which should be removed from left elbow, but in his cross examination has categorically admitted that the petitioner has not underwent any surgery in respect of left elbow. So considering the
44 (SCCH-8) M.V.C. No.6154/2013 injuries sustained by him in a road traffic accident and the evidence of the PW1 and PW2, it is just and necessary to grant Rs.15,000/- for the above head, it will meet the ends of justice. So Rs.15,000/- is granted for the above head.
33. Thus the total award stands as follows:
1.Pain and suffering Rs. 60,000-00
2.Loss of income during laid Rs. 28,000-00 up period
3.Medical bills Rs. 26,766-00
4.Loss of future earning Rs. 1,89,000-00
5.Loss of amenities, Rs. 30,000-00 conveyance, food and nourishment, attendant charges etc.
6.Future medical expenses Rs. 15,000-00 Total Rs. 3,48,766-00
34. The respondent No.2 being the insurer in his written statement has taken up the contention that the offending vehicle was not at all involved in the accident. The petitioner has falsely implicated the offending vehicle in order to get the compenstion, but the reasons best known to the second respondent has not placed any materials nor examined any independent witness nor the 45 (SCCH-8) M.V.C. No.6154/2013 driver of the offending vehicle to establish his defence. In the absence of the materials on record, it is very difficulty to believe the case of the respondent. On the other hand the petitioner has proved through oral and documentary evidence about the involvement of the vehicle and the accident which was caused by the offending vehicle driver.
35. The learned counsel for the petitioner has drawn the court attention on the judgment of the Hon'ble Supreme Court reported in 2014 ACJ 2161 in between Yerramma and others vs. G. Krishnamurthy and another, 2014 ACJ 2550 in between Kiran vs. Sajjan Singh and others and 2014 ACJ 1007 in between G. Dhanasekar vs. Managing Director, Metropolitan Transport Corporation Ltd. On careful perusal of the above said decisions, I do respect to the said decisions, but the respondent has not taken up the contention about the contributory negligence nor proved about the contributory negligence on the part of the petitioner. So, 46 (SCCH-8) M.V.C. No.6154/2013 question of discussion of the judgments relied by the learned counsel for the petitioner in respect of the contributory negligence does not arise.
36. The respondent No.2 being the insurer in his written statement has denied about the issuance of the policy in respect of the offending vehicle in favour of the first respondent. But whereas Ex.R2 is the policy in which it is clear that the policy was existence from 21- 07-2012 to 20-07-2013. The accident was occurred on 26-06-2013. So one thing is clear that as on the date of the alleged accident the policy was in existence.
37. The respondent No.2 has taken up the contention that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to ride the same. But the reasons best known to the respondent No.2 has not placed any materials on record nor examined any authority i.e., RTO or ARTO to show that as on the date of the alleged accident the offending vehicle driver was not holding 47 (SCCH-8) M.V.C. No.6154/2013 valid and effective driving licence and Ex.P4 is the charge sheet filed by the I.O., nowhere discloses that the offending vehicle driver was not holding valid and effective driving licence as on the date of the alleged accident. If at all the driver of the offending vehicle was not holding the valid and effective driving licence the I.O., would have charge sheeted against the offending vehicle driver for the offence punishable under Section 181 of MV Act. So on record there is no material to show that the offending vehicle driver was not holding valid and effective driving licence as on the date of the alleged accident. So one thing is clear that as on the date of the alleged accident, the policy was in existence and the offending vehicle driver was holding valid and effective driving licence. So, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. But in view of the valid insurance policy the respondent No.2 is liable to pay the compensation to the petitioner with interest at the rate of 8% p.a. inview of the decision of the 48 (SCCH-8) M.V.C. No.6154/2013 Hon'ble Supreme Court reported in 2012 KLJ 292 from the date of petition till its realization. In the result, the issue No.3 is answered as partly in the affirmative.
38. Issue No.4:
In view of my finding on issue Nos.1 to 3, I proceed to pass the following:
ORDER The petition filed by the petitioner under section 166 of M.V. Act is partly allowed, with costs. The petitioner is entitled for compensation of Rs.3,48,766/-
together with interest at the rate of 8% p.a. from the date of the claim petition till its realisation.
The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 being the insurer shall pay the compensation amount with interest at the rate of 8% p.a. from the date of the claim petition till its realisation within a period of 30 days from the date of this order. 49 (SCCH-8) M.V.C. No.6154/2013 On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of his choice for a period of three years and the remaining 60% shall be released to him by means of A/c payee cheque on proper identification. The petitioner is at liberty to withdraw the periodical interest accrued on his deposit amount from time to time.
The expenses to be incurred for future medication shall not carry any interest.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 16th day of November 2015.
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
50 (SCCH-8) M.V.C. No.6154/2013 ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Sri Babajan @ Babu Jan PW2 Dr. S. Ramachandra PW3 Sri Dukekula Chand Basha
List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Wound Certificate
Ex.P4 True copy of Charge sheet
Ex.P5 True copy of Document issued by the
Government Hospital, Bagepalli.
Ex.P6 Discharge cum identity card
Ex.P7 3 OPD Slips
Ex.P8 Driving licence extract
Ex.P9 True copy of Policy cover note
Ex.P10 25 Medical bills amounting to Rs.26,766/-
Ex.P11 OPD card
Ex.P12 Case sheet
Ex.P12(a) History of RTA
Ex.P13 One X-ray film
Ex.P14 True copy of Statement of Dudekula Chand
Pasha in Telegu language
Ex.P14(a) Translated copy of Ex.P14
51 (SCCH-8) M.V.C. No.6154/2013
List of the witnesses examined on behalf of respondents:
RW1 Dr. Manja Nayak RW2 Sri G. Shivakumar
List of the documents marked on behalf of respondents:
Ex.R1 Attested true copy of MLC Extract
Ex.R2 Policy copy
Ex.R3 Notice copy
Ex.R4 Postal cover
Ex.R5 Notice copy inside the Ex.R4
(P.J. Somashekar),
XII Addl. Judge-Member, MACT,
Bangalore.