Bangalore District Court
Of The Said Motor Cycle Was Riding In A ... vs Was/Is Obligated To Satisfy And Act In ... on 21 November, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 21st day of November, 2015.
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.3703/2014
C/w. M.V.C.No.3704/2014
Puttaswamachari. S., ..... PETITIONER IN
S/o Late Sannachari, M.V.C.No.3703/2014
Aged about 30 years,
R/at No.100, 5th Main,
'D' Cross, Byatrayanapura,
New Layout,
Mysore Road,
Bangalore-560 066.
(By Sri. B.K.Kumar, Adv.,)
Priya, ..... PETITIONER IN
D/o Gurumurthachari, M.V.C.No.3704/2014
Aged about 13 years,
R/at No.71/1,
Srishanthishaw Mill,
Shivanandanagar,
Jaraganahalli,
Bangalore - 560 078.
The Petitioner is minor, hence,
represented by his natural guardian
father namely, Gurumurthachari S/o
Marashimachari.
(By Sri. B.K.Kumar, Adv.,)
2 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
V/s
1. The Manager, .....RESPONDENTS
National Insurance Company Ltd., IN BOTH THE
No.672, 1st Floor, CASES
11th Main Road,
4th Block, Jayanagar,
Bangalore - 560 011.
(Insurer of the offended vehicle Tata
Ace Goods Bearing Reg.No.KA-42-A-
587)
2. Mr. Venkatesh.V.,
S/o Venkategowda,
Madarahalli, Kanakapura,
Near Water Tank,
Kanakapura Taluk,
Ramanagara District.
(R.C. Owner of Vehicle Tata Ace
bearing Registration No.KA-42-A-587)
(R-1 By Sri. S.N.Rangaswamy, Adv.,)
(R-2 By Sri. Shivalinge Gowda. M.,
Adv.,)
COMMON JUDGMENT
As per the Order dated 26.03.2015 passed on memo in
M.V.C.No.3703/2014, M.V.C.No.3704/2014 is clubbed with the
said M.V.C.No.3703/2014 and the common evidence is recorded
in the said case. Hence, M.V.C.No.3703/2014 and
M.V.C.No.3704/2014 are pending for consideration and disposal
by passing a common judgment.
2. The Petitioner in M.V.C.No.3703/2014 has filed the
said petition as against the Respondents No.1 and 2 under
Section 166 of the Motor Vehicles Act, 1989, praying to award
3 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
compensation of Rupees 10,00,000/- with interest at the rate of
12% p.a. and costs.
3. The brief averments of the Petitioner's case in M.V.C.
No.3703/2014 are as follows;
a) On 23.06.2014 at about 3.45 p.m., he was riding a
Motor Bike bearing Registration No.KA-05-EW-3046 along with
pillion rider, namely, Priya, on Bangalore - Kanakapura Road,
Near Kaggalipura Government Hospital Cross turning in order to
going towards Bangalore, very carefully, cautiously and
observing all the traffic rules. At that time, one Tata Ace Goods
bearing Registration No.KA-42-A-587 driven by its driver at a
very high speed, in a rash and negligent manner so as to
endangering to human life, came from opposite direction, i.e.,
from Bangalore side towards Kanakapura and dashed as against
his riding Motor Bike. As a result, both were fell down along with
Motor Bike and sustained injuries. He sustained fracture of left
leg both bone, fracture of left femur, fracture of left forearm and
other injuries all over the body. Immediately, he was shifted to
Sri Sairam Hospital by the 108 Ambulance, wherein, first aid
was given and then, he was shifted to St. John's Hospital for
further treatment, whereat, he was treated as an inpatient, X-
ray was taken and above said fractures and injuries were
conformed. The Doctor, who had treated him opinion that,
injuries caused permanent in nature and advised to undergo an
operation. During the stay in Hospital, he had operated and
internal fixation was inserted to his fracture site and discharged
with an advise to come for follow-up treatment.
4 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
b) 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 disabled, future treatment and
losses, etc.,
c) Prior to accident, he was very hale and healthy and
doing Electrician work and earning a sum of Rupees 500/- per
day. Due to these accidental injuries, he could not attend his
work so far and he became permanent disabled. 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 activity.
Hence, he and his family members are put to great hardship and
mental agony.
d) The Thalaghattapura Police have registered a case as
against the driver of Tata Ace Goods bearing Registration No.KA-
42-A-587 for the offences punishable under Section 279 and 337
of IPC. In turn, the Police have taken up investigation and after
investigation, the said Police have filed a charge sheet as against
the driver of the Tata Ace Goods. This accident happened due to
sole rash and negligent manner of the said Tata Ace Goods by its
driver.
e) At the time of accident, 1st Respondent was insurer
and 2nd Respondent was R.C. Owner of the said Tata Ace Goods.
Driver was in the course of employment under 2nd Respondent
holding a valid and effective driving licence. Therefore, both the
Respondents are jointly and severally liable for payment of
compensation. Hence, this Petition.
5 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
4. In response to the notice, the Respondent No.1 has
appeared before this Tribunal through his Learned Counsel.
But, initially, inspite of giving sufficient opportunities, the
Respondent No.1 had not filed the written statement. Later, as
per the Order dated 30.06.2015 passed on I.A.No.I, the written
statement filed by the Respondent No.1 is taken on file.
5. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through his Learned Counsel and
has filed the written statement.
6. The Respondent No.1 inter-alia denying the entire
case of the Petitioner in M.V.C.No.3703/2014, has further
contended as follows;
a) At the very out-set, the petition is not maintainable
either under law or on facts. The Petitioner cannot allege any
negligence as against the alleged driver of the alleged Tata ACE
Goods Tempo bearing Registration No.KA-42-A-587 and
consequently, as the petition is filed as against self-negligence of
the Petitioner/rider of the Bajaj Pulsar Motor Cycle bearing
Registration No.KA-05-EW-3046, hence, this claim petition is
not maintainable as against him. The alleged said Tata Ace
Goods Tempo was involved in the alleged accident and dashed
the Motor Cycle, is baseless and it is a false claim. Hence, the
petition is not maintainable. The alleged owner and insurer of
the Motor Cycle are not made as parties, though they appears to
be responsible for making payment of compensation, if any,
awarded. Hence, the petition as against them is bad for mis-
joinder, as they are unnecessarily made as parties, with ulterior
6 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
motive to claim compensation. The Petitioner has to blame
deceased himself for his negligence.
b) The alleged Tata Ace Goods Tempo bearing
Registration No.KA-42-A-587, belonging to the 2nd Respondent,
was insured with him at the time of alleged accident. However,
the liability/obligation, if any, of him shall be strictly subject to
proving the alleged accident/cause of action/accident alleged as
suffered because of the user of the alleged said Tata ACE Goods
Tempo, the assumption of risk, the involvement of the alleged
Tata Ace Goods Tempo in the alleged accident, subject to terms
and conditions of the policy, limits, limitations and exceptions
and endorsements of/to the policy and law governing thereto
and also the other enactments corresponding to the incident and
other aspects and matters involved in adjudication and finally
for the ascertainment of the liability of them.
c) It is the self-negligence and self suffering of the
injuries because of own act of the rider of the Motor Cycle. The
Petitioner/rider of the said Motor Cycle was riding in a rash and
negligent manner with carelessly and unmindfully without
observing Traffic rules and regulations and himself dashed the
Tata Ace Goods Tempo and sustained injuries and hence, the
Petitioner/rider alone is responsible and main architect for the
unfortunate alleged accident and not the alleged driver of the
alleged Tata Ace Goods Tempo. Hence, the petition is not
maintainable for the self accident.
d) The Petitioner is put to strict proof that, the alleged
both the drivers of the alleged Tata Ace Goods Tempo and Motor
7 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
Cycle had valid and effective driving licence to drive the
respective classes of the vehicles and they were not disqualified
to drive them at the time of the alleged accident, if at all the
involvement of the alleged Tata Ace Goods Tempo and alleged
cause of action is proved to be true, the insured/2nd Respondent
has knowingly entrusted the vehicle to the driver, who had no
valid and effective driving licence to drive the class of the vehicle
and thereby has breached, has no obligation to indemnify any
amount, as against the alleged cause of action.
e) As per the policy of insurance issued as against the
said alleged Tata Ace Goods Tempo, the insured, i.e., 2nd
Respondent was/is obligated to satisfy and act in accordance
with Section 3, 5, 56 and 66 of the M.V. Act, 1988 and Rule 3 of
the Central Motor Vehicles Rules and also subject to limitation
of it, shall be subject to coverage of risk and defences available
to it under Sections 147 and 149 of the said Act by the insured.
There is no obligation on the part of it to indemnify the alleged
liability of the 2nd Respondent unless the Petitioner proves the
liability and obligation of it.
f) Without prejudice and certainly not admitting the
claims of the Petitioner about the involvement of the alleged Tata
Ace Goods Tempo, alleged accident and rest of the claims, the
alleged Tata ACE Goods Tempo was used without having valid
permit and fitness certificate. Using of the vehicle in a public
place without having valid permit and fitness certificate is a
violation of terms and conditions of the policy and also against
to the provisions of the Motor Vehicles Act and hence, it is not
liable to pay any compensation.
8 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
g) Without prejudice, when the entire claims of the
Petitioner are viewed along with Police documents, the entire
negligence on the part of the Petitioner/rider of the Motor Cycle
and himself is responsible for alleged accident and injuries.
Hence, this Hon'ble Tribunal needs to re-appreciate the contents
of the documents corresponding to the claims and evidence that
will be brought on record, in order to do justice and save the
public funds. The Motor Cycle is the true vehicle involved in the
alleged accident and not the alleged Tata ACE Goods Tempo. The
alleged facts are far from truth and the Petitioner is therefore,
put strict proof of involvement of the alleged insured Tata ACE
Goods Tempo in the said accident, independent of the Police
documents.
h) Without prejudice, the alleged driver of the alleged
insured Tata ACE Goods Tempo was not responsible for alleged
accident. The Petitioner has not come with clean hands before
this Hon'ble Court. The complaint has been lodged before the
jurisdictional Police with all malafide intentions, when the
inordinate lapse of time after the alleged sufferings of the alleged
accident. Absolutely no bonafide reasons are demonstrated for
belated complaint lodged before the jurisdictional Police.
Immediately after the alleged accident, the Petitioner or his
family members have not given complaint before the
jurisdictional Police to get unlawful gain as against it. Hence, it
is not liable to pay any compensation.
i) Without prejudice, it is humbly prayed to permit it to
avail all or any of the defences available to the insured, under
the circumstances enunciated under Section 170 of the M.V. Act
9 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
1988 and to file either additional written statement or to amend
the written statement, as the copies of the documents, on which
the Petitioner would rely are not made available to it and alleged
facts, stated in the petition are specifically disputed and the
facts are not made clear fully pertaining to all the matters and
claims.
j) If the alleged cause of action is proved to be true, the
insured/2nd Respondent, has not reported the alleged accident
or cause of action, both as required under M.V. Act as per
contract to it and has breached the terms and conditions of the
policy and hence, there is no obligation of indemnification as
against it, in respect of the alleged liability. The jurisdictional
Police also have not acted as required under the M.V. Act, if the
alleged claims of the Petitioner are proved to be true and hence,
it is unable to file comprehensive written statement and prays to
permit it to suitably amend the written statement if necessary at
later stage. There is no compliance of the obligations under
Section 134(c) and 158(6) of the M.V. Act by the driver/2nd
Respondent and the jurisdictional Police.
k) The Petitioner is called to stated that, he has not filed
any other petition/application before any other
Court/Tribunal/Authority in respect of the same alleged
accident and as against them and the present petition is
maintainable.
l) Even if the Petitioner proves the alleged accident,
involvement of the vehicle, injuries, treatment, etc., the
Petitioner is not entitled to the amount claimed in the petition
10 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
and the claim is highly exaggerated and has been made
baselessly.
m) In the event of award, it is liable to pay interest at 6%
as per the various decisions of the Apex Court and interest not
payable over the amount paid to the Petitioners in respect of
future medical expenses or if he delays the proceedings, no
interest need to be granted on such future expenses and interest
is to be paid only over the amount, which has become payable
on the date of award as per the decision of the Apex Court in
R.D. Hattangadi V/s Pest Control India Ltd., in AIR 1995 SC
755.
n) No interest is required to be granted in the event of
any amount is granted towards future medical expenses, if the
Petitioner establishes his case. If the Petitioner delays the
proceedings, he is not entitled for any interest for the period
spent before this Hon'ble Tribunal at his behest. Hence, prayed
to dismiss the petition.
7. The Respondent No.2 inter-alia denying the entire
case of the Petitioner in M.V.C.No.3703/2014, has further
contended as follows;
a) At the outset, the petition filed by the Petitioner as
against him is not maintainable either in law or on facts.
b) The averments regarding name and father's name of
the Petitioner, aged about 30 years, earning his livelihood as
Electrician, earning a sum of Rupees 500/- per day, met with a
road traffic accident, which occurred on 23.06.2014 at about
11 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
3.45 p.m., on Bangalore-Kanakapura Road, Near Hospital Road
Cross, Kaggalipura Village, Uttarahalli Hobli, Bangalore District,
injuries sustained, took treatment, etc., are not within the
knowledge of him.
c) The averments of the petition that, on 23.06.2014 at
about 3.45 p.m., the Petitioner was riding the Motor Cycle
bearing Registration No.KA-05-EW-3046 along with pillion rider
by name Priya on Bangalore - Kanakapura Road, Near
Kaggalipura Government Hospital road cross turning, at that
time, the driver of TATA ACE Goods bearing Registration No.KA-
42-A-587 came from opposite direction in a rash and negligently
and dashed as against the aforesaid Motor Cycle, due to which,
the Petitioner and the pillion rider fell down and sustained
injuries, thereafter took first aid treatment at Sri. Sairam
Hospital, thereafter at St. John's Hospital as an inpatient and
spent huge amount towards treatment, conveyance and
nourishment charges, etc; are also not within the knowledge of
him.
d) He admits that, he is the R.C. Owner of the Tata ACE
Goods vehicle bearing Registration No.KA-42-A-587 and all the
R.T.O. documents pertaining to the said vehicle Auto Rickshaw
standing in his name and the said vehicle was insured with the
Respondent No.1/National Insurance Company Ltd., vide policy
No.55270031136300153309, valid from 22.01.2014 to
21.01.2015, the policy was in force as on the date of alleged
accident and the driver, who drove the said vehicle is having
valid and effective driving licence, if this Hon'ble Court comes to
conclusion in granting any compensation, the Respondent No.1/
12 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
Insurance Company itself is liable to pay the compensation, but,
not he.
e) The compensation amount of Rupees 2,50,000/- as
claimed by the Petitioner is excessive, exorbitant and speculative
in nature. Hence, prayed to dismiss the claim petition.
8. The Petitioner in M.V.C.No.3704/2014 has filed the
said petition as against the Respondents No.1 and 2 under
Section 166 of the Motor Vehicles Act, 1989, praying to award
compensation of Rupees 2,50,000/- with interest at the rate of
12% p.a., with costs.
9. The brief averments of the Petitioner's case in M.V.C.
No.3704/2014 are as follows;
a) On 23.06.2014 at about 3.45 p.m., she was
proceeding on a Motor Bike bearing Registration No.KA-05-EW-
3046 as a pillion rider and at that time, one Mr.
S.Puttaswamachari was riding the said Motor Bike on Bangalore
- Kanakapura Road, Near Kaggalipura Government Hospital
cross turning in order to going towards Bangalore, very carefully,
cautiously and observing all the traffic rules. At that time, one
Tata Ace Goods bearing Registration No.KA-42-A-587 driven by
its driver at a very high speed in a rash and negligent manner so
as to endangering to human life came from opposite direction,
i.e., from Bangalore side towards Kanakapura and dashed as
against his riding motor bike. As a result both were fell down
along with Motor bike and sustained injuries. She sustained
lacerated cut injury over left leg head injury, injuries over
forehead and other injuries all over the body. Immediately he
13 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
was shifted to Sri Sairam Hospital by the 108 Ambulance,
wherein, first aid was given and then, she was shifted to KIMS
Hospital, whereat, she was treated as an outpatient and then,
she was shifted to St. John's Hospital for further treatment,
whereat, she was treated as an inpatient, X-ray was taken and
above said fractures and injuries were conformed. The Doctor
who had treated her opinion that, injuries caused permanent in
nature and advice to not to involve in any physical strain work
for period of six months.
b) Still she is under treatment. She had incurred huge
amount for her treatment, conveyances and nourishment etc.,
c) Prior to accident, she was very hale and healthy and
studying 7th Standard at Shreya Public School and she was very
active and brilliant student and scoring good marks in all
previous examination and participating in cultural activities and
school games. Due to these accidental injuries, she could not
attend her classes so far and she became permanent disabled.
Her bright future, good ambitions and achievements are become
destroyed and life is put in dark and miserable. It is very difficult
to participate in cultural activities and school games. Now, she
is fully depending upon others in all day to day activity. Hence,
she and her family members are put to great hardship and
mental agony.
d) The Thalaghattapura Police have registered a case as
against the driver of Tata Ace Goods bearing Registration No.KA-
42-A-587 for the offences punishable under Section 279 and 337
of IPC. In turn, the Police have taken up investigation and after
investigation, the said Police have filed a charge sheet as against
14 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
the driver of the Tata Ace Goods. This accident happened due to
sole, rash and negligent manner of the said Tata Ace Goods by
its driver.
e) At the time of accident, 1st Respondent was insurer
and 2nd Respondent was R.C. Owner of the said Tata Ace Goods.
Driver was in the course of employment under 2nd Respondent
holding a valid and effective driving licence. Therefore, both the
Respondents are jointly and severally liable for payment of
compensation. Hence, this Petition.
10. In response to the notice, the Respondent No.1 has
appeared before this Tribunal through his Learned Counsel.
But, initially, inspite of giving sufficient opportunities, the
Respondent No.1 had not filed the written statement. Later, as
per the Order dated 30.06.2015 passed on I.A.No.I, the written
statement filed by the Respondent No.1 is taken on file.
11. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through his Learned Counsel and
has filed the written statement.
12. The Respondent No.1 inter-alia denying the entire
case of the Petitioner in M.V.C.No.3704/2014, has further
contended as follows;
a) At the very out-set, the petition is not maintainable
either under law or on facts. The Petitioner cannot allege any
negligence as against the alleged driver of the alleged Tata ACE
Goods Tempo bearing Registration No.KA-42-A-587 and
consequently, as the petition is filed as against self-negligence of
15 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
the Petitioner/rider of the Bajaj Pulsar Motor Cycle bearing
Registration No.KA-05-EW-3046, hence, this claim petition is
not maintainable as against him. The alleged said Tata Ace
Goods Tempo was involved in the alleged accident and dashed
the Motor Cycle, is baseless and it is a false claim. Hence, the
petition is not maintainable. The alleged owner and insurer of
the Motor Cycle are not made as parties, though they appears to
be responsible for making payment of compensation, if any,
awarded. Hence, the petition as against them is bad for mis-
joinder, as they are unnecessarily made as parties, with ulterior
motive to claim compensation. The Petitioner has to blame
deceased himself for his negligence.
b) The alleged Tata Ace Goods Tempo bearing
Registration No.KA-42-A-587, belonging to the 2nd Respondent,
was insured with him at the time of alleged accident. However,
the liability/obligation, if any, of him shall be strictly subject to
proving the alleged accident/cause of action/accident alleged as
suffered because of the user of the alleged said Tata ACE Goods
Tempo, the assumption of risk, the involvement of the alleged
Tata Ace Goods Tempo in the alleged accident, subject to terms
and conditions of the policy, limits, limitations and exceptions
and endorsements of/to the policy and law governing thereto
and also the other enactments corresponding to the incident and
other aspects and matters involved in adjudication and finally
for the ascertainment of the liability of them.
c) It is the self-negligence and self suffering of the
injuries because of own act of the rider of the Motor Cycle. The
Petitioner/rider of the said Motor Cycle was riding in a rash and
16 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
negligent manner with carelessly and unmindfully without
observing Traffic rules and regulations and himself dashed the
Tata Ace Goods Tempo and sustained injuries and hence, the
Petitioner/rider alone is responsible and main architect for the
unfortunate alleged accident and not the alleged driver of the
alleged Tata Ace Goods Tempo. Hence, the petition is not
maintainable for the self accident.
d) The Petitioner is put to strict proof that, the alleged
both the drivers of the alleged Tata Ace Goods Tempo and Motor
Cycle had valid and effective driving licence to drive the
respective classes of the vehicles and they were not disqualified
to drive them at the time of the alleged accident, if at all the
involvement of the alleged Tata Ace Goods Tempo and alleged
cause of action is proved to be true, the insured/2nd Respondent
has knowingly entrusted the vehicle to the driver, who had no
valid and effective driving licence to drive the class of the vehicle
and thereby has breached, has no obligation to indemnify any
amount, as against the alleged cause of action.
e) As per the policy of insurance issued as against the
said alleged Tata Ace Goods Tempo, the insured, i.e., 2nd
Respondent was/is obligated to satisfy and act in accordance
with Section 3, 5, 56 and 66 of the M.V. Act, 1988 and Rule 3 of
the Central Motor Vehicles Rules and also subject to limitation
of it, shall be subject to coverage of risk and defences available
to it under Sections 147 and 149 of the said Act by the insured.
There is no obligation on the part of it to indemnify the alleged
liability of the 2nd Respondent unless the Petitioner proves the
liability and obligation of it.
17 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
f) Without prejudice and certainly not admitting the
claims of the Petitioner about the involvement of the alleged Tata
Ace Goods Tempo, alleged accident and rest of the claims, the
alleged Tata ACE Goods Tempo was used without having valid
permit and fitness certificate. Using of the vehicle in a public
place without having valid permit and fitness certificate is a
violation of terms and conditions of the policy and also against
to the provisions of the Motor Vehicles Act and hence, it is not
liable to pay any compensation.
g) Without prejudice, when the entire claims of the
Petitioner are viewed along with Police documents, the entire
negligence on the part of the Petitioner/rider of the Motor Cycle
and himself is responsible for alleged accident and injuries.
Hence, this Hon'ble Tribunal needs to re-appreciate the contents
of the documents corresponding to the claims and evidence that
will be brought on record, in order to do justice and save the
public funds. The Motor Cycle is the true vehicle involved in the
alleged accident and not the alleged Tata ACE Goods Tempo. The
alleged facts are far from truth and the Petitioner is therefore,
put strict proof of involvement of the alleged insured Tata ACE
Goods Tempo in the said accident, independent of the Police
documents.
h) Without prejudice, the alleged driver of the alleged
insured Tata ACE Goods Tempo was not responsible for alleged
accident. The Petitioner has not come with clean hands before
this Hon'ble Court. The complaint has been lodged before the
jurisdictional Police with all malafide intentions, when the
18 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
inordinate lapse of time after the alleged sufferings of the alleged
accident. Absolutely no bonafide reasons are demonstrated for
belated complaint lodged before the jurisdictional Police.
Immediately after the alleged accident, the Petitioner or his
family members have not given complaint before the
jurisdictional Police to get unlawful gain as against it. Hence, it
is not liable to pay any compensation.
i) Without prejudice, it is humbly prayed to permit it to
avail all or any of the defences available to the insured, under
the circumstances enunciated under Section 170 of the M.V. Act
1988 and to file either additional written statement or to amend
the written statement, as the copies of the documents, on which
the Petitioner would rely are not made available to it and alleged
facts, stated in the petition are specifically disputed and the
facts are not made clear fully pertaining to all the matters and
claims.
j) If the alleged cause of action is proved to be true, the
insured/2nd Respondent, has not reported the alleged accident
or cause of action, both as required under M.V. Act as per
contract to it and has breached the terms and conditions of the
policy and hence, there is no obligation of indemnification as
against it, in respect of the alleged liability. The jurisdictional
Police also have not acted as required under the M.V. Act, if the
alleged claims of the Petitioner are proved to be true and hence,
it is unable to file comprehensive written statement and prays to
permit it to suitably amend the written statement if necessary at
later stage. There is no compliance of the obligations under
19 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
Section 134(c) and 158(6) of the M.V. Act by the driver/2nd
Respondent and the jurisdictional Police.
k) The Petitioner is called to stated that, she has not
filed any other petition/application before any other
Court/Tribunal/Authority in respect of the same alleged
accident and as against them and the present petition is
maintainable.
l) Even if the Petitioner proves the alleged accident,
involvement of the vehicle, injuries, treatment, etc., the
Petitioner is not entitled to the amount claimed in the petition
and the claim is highly exaggerated and has been made
baselessly.
m) In the event of award, it is liable to pay interest at 6%
as per the various decisions of the Apex Court and interest not
payable over the amount paid to the Petitioners in respect of
future medical expenses or if he delays the proceedings, no
interest need to be granted on such future expenses and interest
is to be paid only over the amount, which has become payable
on the date of award as per the decision of the Apex Court in
R.D. Hattangadi V/s Pest Control India Ltd., in AIR 1995 SC
755.
n) No interest is required to be granted in the event of
any amount is granted towards future medical expenses, if the
Petitioner establishes his case. If the Petitioner delays the
proceedings, she is not entitled for any interest for the period
20 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
spent before this Hon'ble Tribunal at his behest. Hence, prayed
to dismiss the petition.
13. The Respondent No.2 inter-alia denying the entire
case of the Petitioner in M.V.C.No.3704/2014, has further
contended as follows;
a) At the outset, the petition filed by the Petitioner as
against him is not maintainable either in law or on facts.
b) The averments regarding name and father's name of
the Petitioner, aged about 13 years, studying in 7th sta ndard at
shreya Public School, Jaraganahalli, met with a road traffic
accident, which occurred on 23.06.2014 at about 3.45 p.m., on
Bangalore-Kanakapura Road, Near Hospital Road Cross,
Kaggalipura Village, Uttarahalli Hobli, Bangalore District,
injuries sustained, took treatment, etc., are not within the
knowledge of him.
c) The averments of the petition that, on 23.06.2014 at
about 3.45 p.m., the Petitioner was riding the Motor Cycle
bearing Registration No.KA-05-EW-3046 as a pillion rider and
the same was driven by its rider by name S. Puttaswamachri on
Bangalore - Kanakapura Road, Near Kaggalipura Government
Hospital road cross turning, at that time, the driver of TATA ACE
Goods bearing Registration No.KA-42-A-587 came from opposite
direction in a rash and negligently and dashed as against the
aforesaid Motor Cycle, due to which, the rider and the Petitioner
fell down and sustained injuries, thereafter took first aid
treatment at Sri. Sairam Hospital, thereafter at St. John's
Hospital as an inpatient and spent huge amount towards
21 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
treatment, conveyance and nourishment charges, etc; are also
not within the knowledge of him.
d) He admits that, he is the R.C. Owner of the Tata ACE
Goods vehicle bearing Registration No.KA-42-A-587 and all the
R.T.O. documents pertaining to the said vehicle Auto Rickshaw
standing in his name and the said vehicle was insured with the
Respondent No.1/National Insurance Company Ltd., vide policy
No.55270031136300153309, valid from 22.01.2014 to
21.01.2015, the policy was in force as on the date of alleged
accident and the driver, who drove the said vehicle is having
valid and effective driving licence, if this Hon'ble Court comes to
conclusion in granting any compensation, the Respondent No.1/
Insurance Company itself is liable to pay the compensation, but,
not he.
e) The compensation amount of Rupees 2,50,000/- as
claimed by the Petitioner is excessive, exorbitant and speculative
in nature. Hence, prayed to dismiss the claim petition.
14. Based on the above said pleadings, I have framed the
following Issues;
ISSUES
In M.V.C.No.3703/2014
1. Whether the Petitioner proves that, the
accident occurred due to rash and
negligent driving of the Tata ACE
bearing Registration No.KA-42-A-587
by its driver and in the said accident,
he sustained injuries?
22 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
2. Whether the Petitioner is entitled for
compensation and damages? If so,
how much and from whom?
3. What Order?
ISSUES
In M.V.C.No.3704/2014
1. Whether the Petitioner proves that, the
accident occurred due to rash and
negligent driving of the Tata ACE
bearing Registration No.KA-42-A-587
by its driver and in the said accident,
she sustained injuries?
2. Whether the Petitioner is entitled for
compensation and damages? If so, how
much and from whom?
3. What Order?
15. In order to prove their case, the Petitioner in M.V.C.
No.3703/2014 himself has been examined as P.W.1 and has
also examined the Doctor as P.W.3 by filing the affidavits as
their examination-in-chief and has placed reliance upon Ex.P.1
to Ex.P.11, Ex.P.14 to Ex.P.17, and Ex.P.19 to Ex.P.23 and the
Petitioner in M.V.C.No.3704/2014 has examined her father as
well as her guardian as P.W.2 by filing an affidavit as his
examination-in-chief and has placed reliance upon Ex.P.12,
Ex.P.13 and Ex.P.18. On the other hand, the Respondents No.1
and 2 have not adduced any evidence on their behalf.
16. Heard the arguments.
23 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
17. In support of the submission, the Learned Counsel
appearing for the Respondent No.1 Sri.S.N. Ramaswamy has
placed reliance upon the decisions reported in,
i) 2014 ACJ 704 Supreme Court of India (Pawan
Kumar and Another V/s Harikishan Dass Mohan Lal and
others), wherein, it is observed that,
Negligence - Composite negligence -
Joint tortfeasers - Liability of accident
between a jeep and truck coming from
opposite directions due to negligence of
both drivers resulting in death of two
passengers in jeep and third passenger
sustained injuries - Truck fled from the
spot and its driver/owner/Insurance
Company could not be impleaded -
Tribunal found that, truck driver alone
was responsible for the accident and no
compensation can be awarded to the
claimants in the absence of parties of the
truck - High Court found that, both the
drivers were responsible for the accident
in the ratio of 70:30 for truck driver and
jeep driver and made parties of jeep liable
to pay 30 per cent of the compensation
awarded in each claim - Apex Court
observed that, this being a case of
composite negligence no need for High
Court to apportion liability for accident
between the two drivers, principle of
contributory negligence not applicable -
Whether drivers/owners of both the
vehicles are jointly and severally liable to
pay entire compensation awarded and
claimants are entitled to enforce the
awards against both or any of them -
Held: yes.
24 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
ii) 2008 ACJ 1165 Supreme Court of India (T.O.
Anthony V/s Karvarnan and others), wherein, it is observed
that,
Negligence-Contributory negligence-
Heard-on collusion between a
Corporation bus and private bus coming
from opposite directions and driver of
corporation bus sustained injuries-
Injured stated that he was driving his bus
at moderate speed on the correct side of
his road and private bus came on to the
wrong side and dashed against his bus-
Distance of accident spot from northern
and southern edges of tar road as per
mahazar showed that Corporation bus
was on the correct side of its road and
private bus came partly to the wrong
side-Evidence that injured neither slowed
down his bus nor swerved to his left-
Tribunal held that both the drivers were
equally negligent and the finding was
upheld in appeal-Apex Court modified the
blame worthiness of the two drivers from
50:50 to 75:25 for private bus driver and
Corporation bus driver.
iii) 2005 ACJ 344 High Court of Andhra Pradesh
(M.Jayanna V/s K.RAdha Krishna Reddy and Another),
wherein, it is observed that,
Evidence-Medical evidence-Injured
sustained fracture and was treated by
orthopaedic surgeon in a government
hospital but he produced Wound
Certificate issued by some other medical
officer in that hospital-Doctor produced
by the injured in support of his claim had
examined him after 20 months of the
accident-Evidence of the doctor is very
vague and artificial about injuries
25 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
suffered and with regard to disability of
the injured whether of temporary or
permanent nature or whether it is partial
or complete-Case remanded for afresh
consideration and to ascertain the
genuineness of the claim and nature of
injuries by examining the doctor who
treated the claimant immediately after the
accident.
Motor Vehicles act, 1988, section
158(6)-Reporting of accident to the
Tribunal-Fictitious claims for non-
existent accidents-Director General of
Police directed to give immediate
instructions to all investigating officers in
the State to comply with the mandatory
requirement of sending F.I.R. within 30
days and charge-sheet after completion of
investigation-In case of default, the
Tribunal may call for F.I.R. and insist
that investigating officers file charge-
sheets.
Motor Vehicles Act, 1988, section
158(6)-Duty of police, officer-
Identification of claimant-Difficulty in
knowing whether persons claiming
compensation are persons who really
suffered injuries or they are legal heirs of
the deceased-Director General of Police
directed to instruct investigating officers
to identify legal heirs or the injured by
taking their photographs with
identification marks and filed the record
before the Tribunal.
Motor Vehicles Act, 1988, section
169-Claims Tribunal-Procedure and
powers-Evidence-Medical witness-If the
doctor is a stock witness, the matter may
be referred to Medical Council for
necessary action.
26 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
Motor Vehicles Act, 1988, sections
166(2) and 169-Claims Tribunal-
Procedure and powers-Claim filed at
native place of the claimant-Tribunal may
call for records from the Tribunal having
jurisdiction over the place of accident.
Motor insurance-Fictitious claims-
Investigating officer on receipt of
information about accident may inform
local field officer of the insurance
company with which the vehicle is
insured so that he can make his own
inquiries about the accident-Insurance
companies shall furnish particulars of
their local Field Inspector to the
concerned police station.
Motor Insurance-Direction to
insurance companies-Counsel/field
officers/legal officers of insurance
companies are not handling their cases
properly to protect the interest of the
companies-No effort is being made by
their counsel to get the correctness of
medical certificates produced by
claimants tested by asking second
opinion-No proper investigation by field
staff-Fictitious and non-existent
accidents for claiming large amounts-
Insurance companies advised to take
corrective steps.
iv) 2005 ACJ 509 High Court of Judicature at
Calcutta (Sudhir Bhuiya V/s National Insurance Company
Limited and Another), wherein, it is observed that,
Motor Vehicles Act, 1988, section 166
and Evidence Act, 1872, section 74-Claim
application-Evidence-Public document-
Admitting document without calling any
witness-Whether discharge certificate
issued by a hospital and medical bill
27 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
given by Durgapur Steel Authority of
India are public documents within the
meaning of section 74 of Evidence Act
and can be admitted-Held: no; these two
documents must be proved by calling any
competent employee of that authority.
18. My answers to the above said Issues are as follows;
In M.V.C.No.3703/2014
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is entitled
for compensation of Rupees
8,09,339/- with interest at
the rate of 6% p.a. from the
date of the petition till the
date of payment from the
Respondent No.1.
Issue No.3 : As per the final Order,
In M.V.C.No.3704/2014
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is entitled
for compensation of Rupees
54,402/- with interest at the
rate of 6% p.a. 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;
28 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
REASONS
19. ISSUE NO.1 in both the cases :- The P.W.1, who is
the Petitioner in M.V.C.No.3703/2014 has stated in his
examination-in-chief that, on 23.06.2014 at about 3.45 p.m. he
was riding a Motor Bike bearing Registration No.KA-05-EW-3046
along with pillion rider, namely, Priya, i.e., the Petitioner in
M.V.C.No.3704/2014, on Bangalore-Kanakapura Road, Near
Kaggalipura Government Hospital Road Cross turning, in order
to going towards Bangalore, very carefully, cautiously and
observing all traffic rules and at that time, one TATA ACE Goods
bearing Registration No.KA-42-A-587 driven by its driver at a
very high speed in a rash and negligent manner so as to
endangering to human life came from opposite direction, i.e.,
from Bangalore side towards Kanakapura and dashed against
their Motor Bike. He has further stated that, both were fell down
along with Motor Bike and sustained injuries and he sustained
fracture of left leg both bone fracture of left femur, fracture of left
forearm with composite defect left lateral D/3 leg, dislocation of
left elbow posterior and other injuries all over the body. He has
further stated that, immediately, he was, taken to Sri Sai Ram
Hospital by the 108 Ambulance, wherein, first aid was given and
then, he was shifted to KIMS Hospital, but, due to non-
availability of specialist Doctor at KIMS Hospital, he got
discharged and he was admitted to St.John's Hospital for further
treatment, wherein, he was treated as an inpatient for 56 days
and X-ray was taken and said fractures and injurers were
confirmed. He has further stated that, this accident happened
due to sole rash and negligent driving of the TATA ACE Goods
bearing Registration No.KA-42-A-587 by its driver and he lodged
29 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
a complaint before the Thalaghattapura Police and the Police
have registered a case against the driver of the said TATA ACE
Goods and in turn, the Police have taken up investigation and
after investigation, the said Police have filed the charge sheet as
against the driver of the said TATA ACE Goods.
20. The P.W.2, who is the guardian of the Petitioner in
M.V.C.No.3704/2014 has also stated the same evidence of P.W.1
in his examination-in-chief and has further stated that, her
daughter sustained lacerated cut injury over left leg, Blunt
trauma abdomen, head injury, injuries over forehead and other
injuries all over the body. He has further stated that,
immediately, she was shifted to Sri Sai Ram Hospital by 108
Ambulance, wherein, first aid was given and then, she was
shifted to KIMS Hospital, wherein, she was treated as an
outpatient and then, she was shifted to St. John Hospital for
further treatment, wherein, she was treated as an inpatient for 2
days and X-rays was taken and the above said injuries were
confirmed.
21. No doubt the P.W.1 in his cross-examination has
stated that, the accidental spot is a curve road and the vehicles,
which were coming from opposite side were little seen to him
and in a curve road, he has to take the vehicle about to middle
of the road for proceeding on the curve road and in the
accidental spot, there was no house, shops and public and at
the time of accident, other TATA ACE goods vehicles and lorries
were proceeding and immediately after the accident, he was
unconscious and the width of the road, on which, the accident
was taken place was about 30 feet. He has clearly admitted that,
he has lodged complaint after 3 days of the accident. It is
30 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
pertinent to note here that, on perusal of the date of accident
and the date of filing of complaint, it clearly goes to show that,
there is 4 days delay in lodging the complaint by the Petitioner
in M.V.C.No.3703/2014. The P.W.1 has further stated that, he
has informed to his family members about the number of the
vehicle, which caused the accident to him and the Police have
not identified the offending vehicle through him, when it was
seized by the Police. Admittedly the P.W.2 has not seen the
accident and the same has been clearly admitted by him in his
cross-examination. He has further stated that, he has not
produced any statement given by him before the Police and he
does no known that, as against whom, the Police have filed a
charge sheet and due to whose fault, the accident was taken
place.
22. But, based on the said oral version of P.W.1 and
P.W.2, which is elicited from their mouth by the Respondents, it
cannot be thrown away the above said oral version of P.W.1 and
P.W.2, which has been stated by them in their examination-in-
chief, as, to corroborate the said oral version of P.W.1 and P.W.2
the Petitioner in M.V.C.No.3703/2014 has produced Ex.P.1 FIR,
Ex.P.2 Complaint, Ex.P.3 Discharge at Request, Ex.P.4
Discharge Summary, Ex.P.14 Spot Panchanama, Ex.P.15 MVI
Report, Ex.P.16 Wound Certificate and Ex.P.17 Charge Sheet
and the Petitioner in M.V.C.No.3704/2014 has produced
Ex.P.18 Wound Certificate, which clearly disclosed that, due to
very high speed, rash and negligent manner of driving of the
offending TATA ACE Goods bearing Registration No.KA-42-A-587
by its driver itself, the said road traffic accident was taken place
on 23.06.2014 at about 3.45 p.m., which dashed the Motor Bike
31 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
bearing Registration No.KA-05-EW-3046, which was riding by
the Petitioner in M.V.C.No.3703/2014 along with the Petitioner
in M.V.C.No.3704/2014 as a pillion rider, on Bangalore-
Kanakapura Road, near Kaggalipura Government Hospital Road
Cross turning and due to the said impact, both of them fell down
and had sustained grievous and simple injuries, which is clear
from the following discussion. Furthermore, the P.W.1 in his
cross-examination has clearly stated that, the Motorcycle, on
which, he was proceeding belongs to him and he and the pillion
rider Priya, were proceeding to the house of Priya and
immediately after the accident, he was unconscious and one
public has informed him about the number of the vehicle, which
caused the accident to him and when he was admitted in the
Hospital, he was conscious and after discharge from the
Hospital, he has shown the accidental spot to the Police. He has
further stated that, Dr. Mallikarjunaswamy was operated him at
St. John Hospital. Furthermore, both the P.W.1 and P.W.2 have
clearly denied the suggestions put to them by the Respondents
that, though the offending vehicle not at all involved in the
accident, in collusion with the Police, it is falsely implicated the
alleged accident and there was no negligence on the part of the
offending vehicle, but, the entire negligence is on the part of the
Petitioner in M.V.C.No.3703/2014 in riding the Motorcycle.
From this, it appears that, though the P.W.1 and P.W.2 have
been cross-examined by the Respondents, nothing has been
elicited from their mouth in respect of their defence.
Furthermore, both the Respondents No.1 and 2 have not
adduced any defence evidence to consider their defence.
32 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
23. The contents of Ex.P.1 FIR and Ex.P.2 Complaint
clearly disclosed that, the Petitioner in M.V.C.No.3703/2014 had
lodged complaint before the Thalaghattapura Police as against
the driver of the offending TATA ACE Goods bearing Registration
No.KA-42-A-587 by alleging that, on 23.06.2014 at about 3.45
p.m., when he was proceeding on his Motorcycle bearing
Registration No.KA-05-EW-3046 along with pillion rider Kum.
Priya, i.e., the Petitioner in M.V.C.No.3704/2014, near
Kaggalipura Government Hospital Road Cross, Bangalore-
Kanakapura Road, at that time, the offending TATA ACE Goods
bearing Registration No.KA-42-A-587 came from Bangalore with
very high speed, rash and negligent manner and dashed to his
Motorcycle on opposite direction and due to the said impact, he
and Kum. Priya fell down along with Motor Cycle and he had
sustained grievous injuries on his left leg and left hand and the
said Priya had sustained injuries on left leg and all over the body
and as such, he has prayed to take necessary legal action as
against the driver of the offending TATA ACE Goods vehicle and
based on the said Ex.P.2 Complaint, the said Police have
registered a criminal case as against the driver of the offending
Lorry for the offences punishable under Sections 279 and 337 of
IPC under Crime No.330/2014. No doubt, there is 4 days delay
in lodging Ex.P.2 Complaint by the Petitioner in
M.V.C.No.3703/2014 in respect of the said road traffic accident.
But, the reasons for delay are clearly narrated by the said
Petitioner in Ex.P.2 Complaint itself, by stating that, as he was
admitted in the Hospital as an inpatient immediately after the
accident and as such, the delay is caused in lodging the
Complaint. Furthermore, the medical documents produced by
the Petitioner in M.V.C.No.3704/2014 clearly disclosed that,
33 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
immediately after the accident, he was admitted at St. John's
Medical College Hospital, to take treatment to the said accidental
injuries, i.e., three grievous injuries and four simple injuries and
by admitting as an inpatient for 24.06.2014 to 28.08.2014, i.e.,
for 58 days, he took treatment to the said accidental injuries.
Therefore, 4 days delay in lodging Ex.P.2 complaint by the
Petitioner in M.V.C.No.3703/2014 in respect of the accident in
question, no way fatal to consider the case of both the
Petitioners.
24. The contents of Ex.P.16 Wound Certificate clearly
disclosed that, with a alleged history of road traffic accident said
to have been caused on 23.06.2014 at 4.30 p.m., near a lake in
Kanakapura Main Road, the Petitioner in M.V.C.No.3703/2014
was admitted in St. John's Medical College Hospital, Bangalore,
at 10.45 p.m., itself on 23.06.2014 and on examination, it is
found that, he had sustained injuries, i.e., Linear open
laceration on the left leg 8x3 bone deep fracture ends seen and
X-ray left leg both bone fracture at the lower 1/3rd outside X-ray,
Laceration present over the right upper arm measuring 3cm,
Superficial abrasion over the left upper arm, tenderness,
swelling and deformity of left forearm with wrist x-ray (outside)
posterior dislocation of left elbow and left distal radius fracture,
Tenderness, swelling and deformity of left thigh X-ray (outside)-
fracture distal shaft of femur, Laceration of the left 4th toe about
6 cms., long and Multiple abrasion of varying sizes present over
left foot, left knee and front of left leg, i.e., three grievous injuries
and four simple injuries and by admitting as an inpatient from
24.06.2014 to 20.08.2014, i.e., for 58 days, he took treatment to
the said accidental injuries in the said Hospital.
34 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
25. The contents of Ex.P.3 Discharge at Request and
Ex.P.4 Discharge Summary further clearly disclosed that, by
admitting as an inpatient from 24.06.2014 to 20.08.2014, i.e.,
for 58 days, the Petitioner in M.V.C.No.3703/2014 had taken
treatment to the said three grievous injuries and four simple
injuries, which had been sustained in the road traffic accident
and he had taken treatment at St. John's Medical College
Hospital, Bangalore and again, he was admitted in the said
Hospital as an inpatient on 08.09.2014 to 17.09.2014, i.e., for
10 days. From this medical evidence, it is made crystal clear
that, by admitting as an inpatient, totally for 68 days, the
Petitioner in M.V.C.No.3703/2014 had taken treatment to the
said accidental injuries at St. John's Medical College Hospital,
Bangalore. The P.W.3, who is one of the team of the treated
Doctor has also stated in his examination-in-chief that, the
Petitioner came to their Hospital with a alleged history of road
traffic accident on 23.06.2014 around 4.30 p.m., near Lake
Kanakapura Main Road, Bangalore and he had sustained the
injuries i.e., closed Fracture of shaft of (L) femur segmental, Type
III Open fracture both bone lower 3rd leg, Fracture dislocation (L)
elbow, Fracture distal radius and ulna, Cut lacerated wound (R)
arm , Superficial abrasion (L) arm and Multiple abrasion wound
(L) knee, (L) leg and (L) foot and he took treatment to the said
accidental injuries by admitting as an inpatient. The P.W.3 has
also produced Ex.P.20 and Ex.P1 Inpatient Records.
26. The contents of Ex.P.14 Spot Panchanama and
Ex.P.15 MVI Report further clearly disclosed that, due to high
speed, rash and negligent manner driving of the offending TATA
ACE Goods bearing Registration No.KA-42-A-587 by its driver
35 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
itself, the said road traffic accident was taken place, which
dashed to the Motor Cycle bearing Registration No.KA-05-EW-
3046, wherein, both the Petitioners were proceeding as a rider
and pillion rider, respectively and the entire negligence is on the
part of the driver of the offending TATA ACE Goods and there is
no negligence on the part of the Petitioner in M.V.C.
No.3703/2014 in riding his Motor Cycle. The damages caused to
both the vehicles are clearly shown in Ex.P.15 MVI Report,
which clearly disclosed about the terrific impact of the said
accident. It is also clearly mentioned in Ex.P.15 MVI Report that,
the said accident was not occurred due to any mechanical
defects of the said both vehicles.
27. The contents of Ex.P.18 Wound Certificate further
clearly disclosed that, with a alleged history of road traffic
accident said have been caused on 23.06.2014 at 4.30 p.m.,
near Kaggalipura Bus Stop, Kanakapura Main Road, the
Petitioner in M.V.C.No.3704/2014 was admitted in St. John's
Medical College Hospital, Bangalore, at 10.30 p.m., on
23.06.2014 itself and on examination, it is found that, she has
sustained injuries, i.e., sutured wound over left knee measuring
2 cms in length, X-ray left knee normal, sutured wound left
thigh measuring 2cm in length, Abrasion over left knee
measuring 5cm X 2cm, abrasion over right knee measuring 4cm
X 4 CM and mild tenderness over right upper abdomen USG
abdomen : normal, i.e., five simple injuries. From this, it is made
crystal clear that, in the said road traffic accident, the Petitioner
in M.V.C.No.3704/2014 had sustained five simple injuries.
28. The contents of Ex.P.17 Charge Sheet, further clearly
disclosed that, since during the course of investigation, it is
36 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
found that, due to high speed, rash and negligent manner of
driving of the of the offending TATA ACE Goods bearing
Registration No.KA-42-A-587 by its driver itself, the said road
traffic accident was taken place on 23.06.2014 at 3.45 p.m.,
near Kaggalipura Government Hospital, Santhe Katte,
Bangalore-Kanakapura Road, at Hospital turning road, which
dashed to the Motorcycle, which was riding by the Petitioner in
M.V.C.No.3703/2014 along with the Petitioner in
M.V.C.No.3704/2014 as a pillion rider, on its front portion and
due to the said impact, the Petitioner in M.V.C.No.3703/2014
had sustained grievous injuries and the Petitioner in
M.V.C.No.3704/2014 had sustained simple injuries and as
such, after thorough investigation, the Investigating Officer has
filed a charge sheet as against the driver of the offending TATA
ACE Goods for the offences punishable under Sections 279, 337
and 338 of IPC. It is not alleged as against the Petitioner in
M.V.C.No.3703/2014 in Ex.P.17 Charge Sheet by the
Investigation Officer about his negligence in the commission of
the said road traffic accident.
29. From the above said material evidence, both oral and
documentary, it clearly goes to show that, the entire negligence
is on the part of the driver of the offending TATA ACE Goods
bearing Registration No.KA-42-A-587 in the commission of the
said road traffic accident and there was no negligence on the
part of the Petitioner in M.V.C.No.3703/2014 in riding Motor
Bike bearing Registration No.KA-05-EW-3046 and the said
offending TATA ACE Goods bearing Registration No.KA-42-A-587
as well as its driver are very much involved in the said road
traffic accident, wherein, the Petitioner in M.V.C.No.3703/2014
37 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
had sustained three grievous injuries and four simple injuries
and the Petitioner in M.V.C.No.3704/2014 had sustained five
simple injuries in the said road traffic accident. To deny or to
discard the same, nothing is available on record on behalf of the
Respondents. Accordingly, I answered Issue No.1 in both the
cases in the Affirmative.
30. ISSUE NO.2 IN BOTH THE CASES :-
ISSUE NO.2 IN M.V.C.NO.3703/2014 :- The Petitioner
has produced Ex.P.5 Driving Licence relating to him, which
disclosed that, his date of birth is on 20.01.1984. The date of
accident is on 23.06.2014. From the said dates, it appears that,
at the time of accident, the Petitioner was 31 years old. Hence,
the age of the Petitioner is considered as 31 years at the time of
accident.
31. The P.W.1 has stated that, prior to the accident, he
was hale and healthy and doing electrician work and obtained
licence from the concerned Authority and earning a sum of
Rupees 15,000/- per month. The Petitioner has produced Ex.P.6
Licence of Electrical Works, Ex.P.7 Karnataka Bank Pass Book
and Ex.P.8 Corporation Bank Pass Book relating to him. But,
only based on the said oral version of P.W.1 as well as contents
of Ex.P.6 to Ex.P.8, it cannot be believed and accept that, at the
time of accident, the Petitioner was doing an electrical work by
obtaining a Licence from the concerned Authority and earning
Rupees 15,000/- per month, as, on perusal of the contents of
Ex.P.6 Licence of Electrical Works, it clearly goes to show that,
the period of licence is expired on 30.11.2013. The date of
accident is on 23.06.2014. From this, it is made crystal clear
38 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
that, before the accident itself, the licence of electrical works,
which was standing in the name of the Petitioner as per Ex.P.6,
is expired on 30.11.2013. In this regard, the P.W.1 has clearly
stated in his cross-examination that, as per Ex.P.6 Licence, the
Licence period is expired on 30.11.2013 and thereafter, he has
not obtained the renewal licence. From this, it is made crystal
clear that, as on the date of accident, the Petitioner was not
having a valid licence for doing Electrical Work. Furthermore,
the entries made in Ex.P.7 and Ex.P.8 Bank Pass Books relating
to the Petitioner do not disclosed that, he was having income of
Rupees15,000/- per month at the time of accident. In this
regard, the P.W.1 in his cross-examination has clearly admitted
that, it is not entered Ex.P.7 and Ex.P.8 Pass Books that, out of
the income from Electrician Work, he was getting income of
Rupees 15,000/- per month. Therefore, the case made out by
the Petitioner in respect of avocation and income cannot be
believed. However, at the time of accident, the Petitioner was 31
years old and as such, he is having a family with wife and
children and as such, 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, believable and
acceptable one. Hence, the notional income of the Petitioner is
considered as Rupees 8,000/- per month at the time of accident.
32. The P.W.1 has stated that, the Doctor, who had
treated him opinion that, the injuries caused permanent in
nature and advised to undergo an operation during the stay in
Hospital and he had operated for five times and internal fixation
was inserted to his left leg femur and external fixator with K-
39 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
wiring was applied for his left leg both bone, wound debridement
+ flap and inset was done to his left leg fracture side and
discharged with an advise to come for follow up treatment. He
has further stated that, he visited the Doctor once in a week for
6 times and after three weeks, he again admitted to St. John's
Hospita due to for the pus formation was developed in the
operation portion, wherein, he was treated as an inpatient for 10
days and during the stay in Hospital, he had operated and
external fixator realignment left leg with skin grafting for raw
area under GA was done and he visited the Doctor once in 15
days for four times and once in a month even today.
33. The P.W.3, who is one of the team of the treated
Doctor, has also clearly stated in his examination-in-chief that,
the Petitioner was treated with emergency baisis, open reduction
internal fixation with intra medulary inter locking nail for femur
fracture with debridement of (L) leg wound with external fixation
for both bone fracture leg was done on 24.06.2014 and on
02.07.2014 re-alignment of external fixation was done and on
25.07.2014 reverse dural flap after delay + SSG was done on by
plastic surgery and on 07.08.2014 debridement of flap + Flap
reinserting was done for flap necrosis and defect and the
Petitioner was discharged on 21.08.2014 with an advise to
review in OPD. He has further stated that, the Petitioner has
attended the OPD 12 times after discharge and he was re-
admitted on 08.09.2014 for raw area over the (L) leg, for which,
external fixation re-alignment with SSG was done on 11.09.2014
and he was discharged on 17.09.2014.
34. This Tribunal has already observed about the
production of Ex.P.16 Wound Certificate, Ex.P.3 Discharge at
40 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
Request, Ex.P.4 Discharge Summary, Ex.P.20 and Ex.P.21
Inpatient Records, Ex.P.22 X-ray films 4 in numbers and
Ex.P.23 CD relating to X-ray films. On perusal of the contents of
the said medical documents, it clearly goes to show that, in the
said road traffic accident, the Petitioner had sustained Linear
open laceration on the left leg 8x3 bone deep fracture ends seen
and X-ray left leg both bone fracture at the lower 1/3rd (outside
X-ray, Laceration present over the right upper arm measuring
3cm, Superficial abrasion over the left upper arm, tenderness,
swelling and deformity of left forearm with wrist x-ray (outside)
posterior dislocation of left elbow and left distal radius fracture,
Tenderness, swelling and deformity of left thigh X-ray (outside)-
fracture distal shaft of femur, Laceration of the left 4th toe about
6 cms. long and Multiple abrasion of varying sizes present over
left foot, left knee and front of left leg. The Petitioner had
sustained fracture injuries and during the course of treatment,
external fixation was done and after discharge, again external
fixation re-alignment was done. By considering the said nature
of injuries, which was sustained by the Petitioner in the road
accident and line of treatment, it clearly goes to shows that, even
after discharge from the Hospital, the Petitioner had required the
regular follow-up treatment to the said accidental injuries as per
the advise of the Doctors. Further, the P.W.3 has also produced
Ex.P.9 Out Patient Record, which clearly disclosed about the
regular treatment taken by the Petitioner to the said accidental
injuries. Therefore, the evidence of P.W.1 and P.W.3 in respect of
follow-up treatment taken by the Petitioner after his discharge,
can very well believed and accept.
41 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
35. The P.W.1 has stated that, due to the accidental
injuries, he could not attend his work so far and he became
permanent disabled and it is very difficult to lead day-to-day life
without sufficient income and now his earning capacity is totally
reduced and hence, he and his family members are put to great
hardship and mental agony. He has further stated that, prior to
that accident, he was very hale and healthy and due to these
accidental injuries sustained in road traffic accident, he cannot
walk and stand without support of stick, he cannot lift weight,
he cannot run, he cannot sleep in one angle, he cannot sit
crossed leg, he cannot use Indian type of toilet, he cannot climb
or down stairs, he cannot fold his left leg, he cannot sit on the
floor continuously for ten minutes, he cannot ride any vehicle,
he cannot raise his left hand, he cannot fold his left hand, he
cannot hold anything in his left hand, he cannot do any manual
work and now he is fully depending upon others in all day to day
activity. He has further stated that, there is permanent scar
retained over the operated portion and extra skin was growth
over the operated portion and it looks very ugly.
36. The P.W.3 has stated that, on 02.06.2015, the
Petitioner complains of pain with swelling, with decreased range
of movement of (L) hip, (L) knee, (L) ankle, (L) ankle, (L) elbow
and (L) wrist H/o shortening of (L) lower limb with limp and
difficulty in walking long distance, climbing stairs up and down,
sitting cross legged and squatting and difficulty in carrying out
daily activities and difficulty in lifting and holding objects (L)
upper limb. He has further stated that, on examination of (L)
elbow, primarily healed scar present, joint line tenderness
present, Range of movement extension, decreased by 5, flexion
42 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
decreased by 10 and on examination of (L) wrist, joint line
tenderness present, range of movement dorsi flexion decreased
by 10, palmar flexion decreased by 5. He has further stated that,
on examination of (L) hip and thigh, secondarily healed multiple
surgical scar present over lateral aspect, scar joint line, fracture
site tenderness present, Range of movement abduction
decreased by 20, internal rotation decreased by 10, flexion
decreased by 25, thigh muscles wasting of 3 cms present. On
examination of (L) knee rotation flap scar was seen postero
lateral aspect, scar, joint line and fracture site tenderness
present, range of movement flexion decreased by 15, extension
decreased b 5, calf muscles wasting of 2cms present. He has
further stated that, X-ray done on 16.06.2015 (L) leg, mal-union
of (L) tibia fracture with nonunion of fibula fracture, X-ray (L)
femur shows mal-union of femur fracture with implant in-situ.
He has further stated that, X-ray (L) wrist shows, mal-union of
distal end of radius fracture with articular irregularity with mal-
union of ulnar styloid fracture and X-ray (L) elbow shows
secondary OA changes with loose body. He has further stated
that, the Petitioner has 31.57% disability of whole body, which is
assessed according to the Guidelines and Gazette Notification, in
respect of loss of movements of left hip, knee, ankle, elbow, wrist
and interfering with function.
37. No doubt, the P.W.3 is one of the team of the treated
Doctors and he has further stated in his cross-examination that,
due to fracture and dislocation, the left elbow was fractured and
dislocated and since the injuries were not healed and infected on
02.07.2014 re-alignment of external fixation was done and after
discharge from their Hospital for 2nd time, the Petitioner had
43 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
taken follow-up treatment and in respect of the difficulties of the
Petitioner, he has clinically examined him.
38. But, based on the said oral version of P.W.1 and
P.W.3 coupled with the contents of the above said material
medical documents, it cannot be believed and accept that, due
to the said accidental injuries, the Petitioner is suffering from
permanent physical and functional disability of 31.57% to the
whole body, as, though the Petitioner has stated that, he was
doing a electrician work by obtaining a licence from the
concerned Authority at the time of accident, he has utterly failed
to prove his avocation and income and neither the Petitioner nor
P.W.3 produced the disability certificate and at the time of
accident, the Petitioner was 31 years old, having family with wife
and children. Further, the P.W.3 in his cross-examination has
clearly admitted that, the injuries noted in the inpatient record
and injuries stated by him in the affidavit are varies and the
Petitioner has not taken any treatment from the date of first
discharge till the admission for 2nd time in their Hospital and he
has not mentioned the measurement of the shortening of the left
lower limb. He has further clearly stated that, only based on the
clinical assessment, he has assessed the shortening of particular
limb and he has not advised the Petitioner in respect of 3 cms
shortening of lower limb and he has not produced the
documents to show that, which treatment was given to the
Petitioner on 16.06.2015. He has further stated that, at the time
of assessment of disability, he has advised the Petitioner to take
follow-up treatment in respect of the difficulties and in this
regard, he has produced the documents and he has also advised
the Petitioner to take physiotherapy treatment in respect of mal-
44 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
union of tibia fracture and non-union of fibula fracture and
femur mal-union. He has further shown his ignorance about the
length of physiotherapy treatment taken by the Petitioner. He
has further clearly stated that, he has not specifically mentioned
in his affidavit about the calculation made in respect of the
whole body disability and upper limb and lower limb. From the
said evidence of P.W.3, it is made crystal clear that, during the
course of treatment, the Petitioner had not followed the
treatment as per the advise of the Doctor and the P.W.3 has not
properly examined the Petitioner in accordance with the medical
guidelines while assessing the actual disability sustaining by the
Petitioner due to the said accidental injuries. Furthermore,
Ex.P.3 Discharge at Request clearly disclosed that, at the
request of the Petitioner himself, he was discharged. It is also
gathered from the said evidence of P.W.3 that, if the Petitioner
has been regularly taking Physiotherapy treatment as per the
advise of the treated Doctors, he is not suffering from the said
extent of disability and it could be definitely reduced. Therefore,
the said extent of disability of 31.57% to the whole body relating
to the Petitioner as stated by the P.W.3 cannot be believed and
accept.
39. However, the Petitioner had sustained three grievous
injuries and two simple injuries in the said road traffic accident
and by admitting as an inpatient, totally for 68 days, he took
treatment to the said accidental injuries at St. John's Medical
College Hospital, Bangalore and as the Petitioner was 31 years
old at the time of accident and also considering his family
status, this Tribunal feels that, due to the said accidental
injuries, the Petitioner is suffering from permanent physical and
45 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
functional disability of 20% to the whole body, which is
believable and acceptable one.
40. As this Tribunal has already come to the conclusion
that, the permanent physical and functional disability of the
Petitioner is of 20%. 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 20%.
41. As this Tribunal has already come to the conclusion
that, the age of the Petitioner was 31 years at the time of
accident. The multiplier corresponding to the said age as per
Sarala Varma's case is 16.
42. As the Petitioner is suffering from permanent
physical and functional disability of 20% 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 20% disability for monthly income of Rupees 8,000/- by
applying multiplier 16 would comes to Rupees 3,07,200/-, i.e.,
(Rs. 8,000/- x 12 x 16 x 20%).
43. As per Ex.P.16 Wound Certificate and evidence of
P.W.1 and P.W.3, the Petitioner had sustained 3 grievous
injuries and 4 simple injuries. The Petitioner was in the
Hospital as an inpatient from 24.06.2014 to 20.08.2014, i.e., for
58 days and from 08.09.2014 to 17.09.2014, i.e., for 10 days,
totally for 68 days. Due to the said injuries, the Petitioner could
have definitely suffered a lot of pain and agony. Considering the
46 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
said aspects, it is just, proper and necessary to award a sum of
Rupees 1,00,000/- towards pain and suffering.
44. As it is already observed that, the age of the
Petitioner was 31 years. He has to lead remaining his entire life
with 20% 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 20,000/- towards loss of
amenities of life to the Petitioner.
45. The Petitioner had sustained 3 grievous injuries and
4 simple injuries and he was in the Hospital as inpatient for 68
days and he could not do any work at least for 6 months and
thereby, he deprived the income. Therefore, at the rate of
Rupees 8,000/- per month, a sum of Rupees 48,000/- is
awarded towards loss of income during the laid up period.
46. The P.W.1 has stated that, he visited the Doctor once
in a week for 6 times, by using taxi and paying sum of Rupees
600/- per trip and he visited the Doctor once in 15 days for four
times, once in a month even today, by using an Auto paying
sum of Rupees 350/- per trip and he has spent sum of Rupees
4,00,000/- for his treatment, conveyance and nourishment etc.
In this regard, the Petitioner has only produced Ex.P.9 Medical
Bills 124 in numbers, which is amounting of Rupees 3,02,138-
63, Ex.P.10 Advance Bills 17 in numbers and Ex.P.11 Medical
Prescriptions 96 in numbers. The Petitioner has taken
treatment at St. John's Medical College Hospital, wherein, he
was taken treatment as an inpatient from 24.06.2014 to
20.08.2014, i.e., for 58 days and from 08.09.2014 to
17.09.2014, i.e., for 10 days, totally for 68 days. Considering
47 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
the nature of the injuries and line of treatment given to him, 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 3,02,138-63, which is
rounded off Rupees 3,02,139/- to the Petitioner.
47. The P.W.1 has stated that, still he is under
treatment and he needs few more operations for removal of
implants and reducing the disability for which, he has to incur
around of Rupees 1,50,000/-. The P.W.3 has stated that, X-ray
shows mal-union of left tibia fracture with non-union of fibula
fracture, mal-union of femur fracture with implant in situ
relating to left leg of the Petitioner and mal-union of distal end
of radius fracture with articular irregularity with mal-union of
ulna styloid fracture relating to left wrist and secondary OA
changes with loose body relating to left elbow. The above said
medical documents clearly disclosed about the fixation to the
Petitioner. Hence, this Tribunal feels that, it is just, proper and
necessary to award future medical expenses of Rupees 10,000/-
to the Petitioner.
48. As the Petitioner was taken treatment as an
inpatient for 68 days, it is necessary to award a sum of Rupees
6,000/- towards conveyance charges, Rupees 6,000/- towards
attendant charges and Rupees 10,000/- towards food,
nourishment and diet charges etc.,
49. In this way, the Petitioner is entitled for the following
amount of compensation:-
48 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
Sl. No. Compensation heads Compensation amount
Loss of future income
1. arising out of 20% Rs. 3,07,200-00
Disability
2. Pain and sufferings Rs. 1,00,000-00
3. Loss of amenities of life Rs. 20,000-00
Loss of income during laid
4. Rs. 48,000-00
up period
5. Actual medical expenses Rs. 3,02,139-00
6. Future medical expenses Rs. 10,000-00
7. Conveyance Rs. 6,000-00
8. Attendant Charges Rs. 6,000-00
Food, Nourishment &
9. Rs. 10,000-00
Diet charges
TOTAL Rs. 8,09,339-00
50. In all, the Petitioner is entitled for total
compensation of Rupees 8,09,339/- along with interest at the
rate of 6% per annum on the above said sum (excluding future
medical expenses of Rupees 10,000/-) from the date of Petition
till payment.
51. ISSUE NO.2 IN M.V.C.No.3704/2014 :-
The P.W.2 has stated that, his daughter was treated as an
outpatient in KIMS Hospital and St. John's Medical College
Hospital, Bangalore, for further treatment, wherein, she was
treated as an inpatient for two days and X-rays was taken and
the above said injuries were confirmed. He has further stated
that, the Doctor, who had treated the Petitioner opinion that,
injuries caused permanent in nature and advised her not to
involve in any physical or mental strain work for a period of six
months and discharged with an advised to come for follow-up
treatment. He has further stated that, his daughter visited the
49 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
Doctor once in 15 days for four times and once in a month for
three times and even today, she is taking treatment as and when
necessary by using a Auto paying a sum of Rupees 350/- per
trip. He has further stated that, he has spent a sum of Rupees
15,000/- for her treatment, conveyances, nourishment etc., and
still she is under treatment. He has further stated that, prior to
that accident, she was very hale and healthy and studying in 7th
Standard at Shreya Public School and she was very active and
brilliant student and scoring good marks in all previous
examinations and participating in cultural activities and school
games, but, due to these accidental injuries, she could not
attend her classes for one month and she became partial
disabled. He has further stated that, she could not participate in
any school games and cultural activities and hence, she has put
to great hardship and mental agony. He has further stated that,
prior to that accident, she was very hale and healthy and due to
accidental injuries sustained in the road traffic accident, she
cannot walk and stand in sunlight, she cannot run, she cannot
sleep in one angle and she cannot take sufficient food at a time
and there is permanent scar retained over the left thigh and
both bone and it always gets itching. He has further stated that,
due to these accidental injuries, her bright future, good
ambitions and achievements are become destroyed and her life
is put in dark and miserable.
52. No doubt, while discussing Issue No.1 in both the
cases, this Tribunal has already come to the conclusion that, in
the said road traffic accident, the Petitioner had sustained five
simple injuries.
50 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
53. But, based on the said oral version of P.W.2 coupled
with the contents of Ex.P.18 Wound Certificate and observations
made in Issue No.1 only, it cannot be believed and accept that,
due to the said accidental injuries, the Petitioner is suffering
from permanent physical and functional disability, as, except
Ex.P.18 Wound Certificate, the Petitioner has not produced any
supportive medical documents and in the said road traffic
accident, the Petitioner had only sustained five simple injuries
and she had not taken treatment to the said accidental injuries
by admitting as an inpatient. Further, the Petitioner has not
produced the disability certificate issued by the competent
Doctor to consider the said difficulties and disability sustaining
by the Petitioner due to the accidental injuries. Furthermore, the
Petitioner has not examined the treated Doctor or any other
competent Doctor to consider the said disability and difficulties.
Furthermore, the P.W.2 in his cross-examination has clearly
stated that, her minor daughter was not undergone any
operation and now her daughter is studying in 8th Standard and
at the time of accident, her daughter was studying in 7th
Standard. From the said evidence of P.W.2, it is made crystal
clear that, though the Petitioner was a minor at the time of
accident and though she had sustained five simple injuries, it no
way affects to continue her education. Therefore, the Petitioner
is not entitled for any compensation towards loss of education,
loss of future income, loss of amenities of life, marriage
prospects and future medical expenses arising out of the
permanent physical and functional disability.
54. However, at the time of accident, admittedly, the
Petitioner was a minor and she had sustained five simple
51 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
injuries in the road traffic accident, by considering the same,
this Tribunal feels that, it is just, proper and necessary to award
global compensation of Rupees 50,000/-, which is fair,
reasonable and acceptable one. Hence the Petitioner is entitled
for global compensation of Rupees 50,000/-.
55. The P.W.2 has stated that, his daughter visited the
Doctor once in 15 days for four times and once in a month for
three times and even today, she is taking treatment as and
when necessary by using a Auto paying a sum of Rupees 350/-
per trip and he has spent a sum of Rupees 15,000/- for her
treatment, conveyances, nourishment, etc., In this regard, the
Petitioner has only produced Ex.P.12 Medical Bills 7 in
numbers, which is amounting of Rupees 4,401-59. In the said
road traffic accident, the Petitioner has only sustained 5 simple
injuries and she has taken treatment at St. Johns Hospital,
wherein, she was taken treatment as an out-patient.
Considering the nature of the injuries and line of treatment
given to her, 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 4,401-59,
which is rounded off Rupees 4,402/- to the Petitioner.
56. In all, the Petitioner is entitled for total
compensation of Rupees 54,402/- along with interest at the rate
of 6% per annum on the above said sum from the date of
petition till payment.
57. While answering Issue No.1, this Tribunal has
already come to the conclusion that, due to very high speed,
rash and negligent manner of driving of the offending TATA Ace
52 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
Goods bearing Registration No.KA-42-A-587 by its driver itself,
the said road traffic accident was taken place, wherein, the
Petitioner in M.V.C.No.3703/2014 had sustained three grievous
injuries and four simple injuries and Petitioner in
M.V.C.No.3704/2014 had sustained five simple injuries. The
Petitioner in the cause title of the petition has clearly mentioned
that, the Respondent No.1 is an insurer and the Respondent
No.2 is a R.C. Owner of the offending TATA Ace Goods bearing
Registration No.KA-42-A-587. The Respondent No.2 has clearly
admitted in its written statement that, he is the R.C. Owner of
the said TATA Ace Goods bearing Registration No.KA-42-A-587
and all the R.T.O. documents pertaining to the said vehicle are
standing in his name and the said vehicle was insured with the
Respondent No.1 vide Policy No.55270031136300153309, valid
from 22.01.2014 to 21.01.2015 and the policy was in force as on
the date of alleged accident. The Respondent No.1 in its written
statement has clearly admitted the issuance of the policy of
insurance as against the said alleged TATA Ace Goods Tempo.
From this, 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 said offending TATA Ace Goods
bearing Registration No.KA-42-A-587 and its Insurance Policy
was valid, which covers the date of accident. There is no
allegation leveled as against driver of the offending TATA Ace
Goods bearing Registration No.KA-42-A-587 in Ex.P.17 Charge
Sheet that, at the time of accident, he was not having a valid
and effective driving licence to drive the offending TATA Ace
Goods. The violation of the terms and conditions of the admitted
Insurance Policy by the Respondent No.2 is not proved by the
Respondent No.1. Under such circumstances, the Respondent
53 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
No.1 being the insurer and the Respondent No.2 being the R.C.
Owner of the offending TATA Ace Goods bearing Registration
No.KA-42-A-587, are jointly and severally liable to pay the above
said compensation and interest to both the Petitioners. 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 Respondent No.1 are applicable to the
present facts and circumstances of the case on hand only to
some extent. Hence, Issue No.2 in M.V.C.No.3703/2014 and
M.V.C.No.3704/2014 are answered accordingly.
58. ISSUE NO.3 IN BOTH THE CASES :- For the
aforesaid reasons, I proceed to pass the following,
ORDER
The petitions filed by the Petitioners in M.V.C.No.3703/2014 and M.V.C.No.3704/2014 under Section 166 of the Motor Vehicles Act, 1989 are hereby partly allowed with costs.
The Petitioner in
M.V.C.No.3703/2014 is entitled for
compensation of Rupees 8,09,339/- with interest at the rate of 6% p.a. (excluding future medical expenses of Rupees 10,000/-) from the date of the petition till the date of payment from the Respondent No.1.
54 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
The Petitioner in
M.V.C.No.3704/2014 is entitled for a compensation of Rupees 54,402/- with interest at the rate of 6% p.a. 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 both the cases.
In the event of deposit of compensation and interest in M.V.C.No.3703/2014, 80% shall be released in the name of Petitioner
through account payee cheque, on proper identification.
Remaining 20% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
In the event of deposit of compensation and interest in
M.V.C.No.3704/2014, 50% amount shall be released in the name of guardian of the Petitioner through account payee cheque, on proper identification and the remaining 50% shall be kept in FD in the 55 M.V.C.NO.3703/2014 C/w 3704/2014 (SCCH-7) name of the Petitioner, in any nationalized Bank of the choice of her guardian, till she attains the age of majority.
Advocate's fee is fixed at Rupees 1,000/- in each case.
Original copy of the Judgment shall be kept in M.V.C.No.3703/2014 and the copy of the same shall be kept in M.V.C.No.3704/2014.
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 21st day of November, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Puttaswamachari.S P.W.2 : Gurumurthachari P.W.3 : Dr. Mahadev Kumar. P.
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
56 M.V.C.NO.3703/2014
C/w 3704/2014
(SCCH-7)
Ex.P.3 : True copy of Discharge at Request
Ex.P.4 : Discharge Summary
Ex.P.5 : Notarised Xerox copy of Driving
Licence relating to Puttaswamachari. S. Ex.P.6 : Notarised Xerox copy of Licence of Electrical Works relating to Purraswamachari. S. Ex.P.7 : Notarised Xerox copy of Karnataka Bank Pass Book relating to Puttaswamachari. S. Ex.P.8 : Notarised Xerox copy of Corporation Bank Pass Book relating to Puttaswamachari. S. Ex.P.9 : Medical Bills (124 in nos.) Ex.P.10 : Advance Bills (17 in nos.) Ex.P.11 : Medical Prescriptions (96 in nos.) Ex.P.12 : Medical Bills (7 in nos.) Ex.P.13 : Advance Bills (2 in nos.) Ex.P.14 : True copy of Spot Panchanama Ex.P.15 : True copy of MVI Report Ex.P.16 : True copy of Wound Certificate Ex.P.17 : True copy of Charge Sheet Ex.P.18 : True copy of Wound Certificate Ex.P.19 : Outpatient File Ex.P.20 : Inpatient Record Ex.P.21 : Inpatient Record Ex.P.22 : X-ray films (4 in nos.) Ex.P.23 : CD relating to X-ray films
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.