Bangalore District Court
Sunil Shreesail Killiket vs Subbraya on 18 July, 2024
KABC020301942021
IN THE COURT OF III ADDL.JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL
CAUSES BENGALURU
(SCCH-18)
Dated: This 18th day of July 2024
Present: LAVANYA H.N. B.Sc., LL.B.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BENGALURU.
M.V.C.No.5135/2021
Petitioner Shri Sunil Shreesail Killiket,
Son of Shreesail Killiket,
Aged about 24 years,
Residing at Hiremasali,
Tamba, Indi Taluk,
Vijaypura-856 215.
(By Pleader Smt.Vedashree)
V/s
Respondents 1.Mr.Subbaray,
Son of Narsimhaiah,
Aged about 43 years,
Residing at No.78, Alluru
Devanahalli Taluk,
Bengaluru Rural District,
Karnataka -567 110.
SCCH-18 2 MVC No. 5135/2021
(By Pleader Shri P.Prasad)
2.Bajaj Allianz General
Insurance Co. Ltd.,
Golden Heights 4th floor,
No.1/2, 59th C Cross,
4th Block, Rajajinagar,
Bengaluru.
(By Pleader Shri K.Nagaraja)
JUDGMENT
The petitioner has filed the petition under Section 166 of Motor Vehicles Act, 1988, claiming compensation for the injuries sustained by him in a road traffic accident dated 09.01.2021.
2. The brief facts of the petitioner's case are as under:
(a) That on 09.01.2021 at about 5.30 p.m., the petitioner being one of the inmates in the car bearing registration No.KA-03-AC-5300 (hereinafter this vehicle has been referred to as offending vehicle) along with his friends proceeding in the offending vehicle which was driven by Appu @ Bhagyodaya Shivapura. When they reached near Ambha Dresses situated at opposite to IB near MG Patel Hospital, Indi, DS, Vijayapura, at that time driver of said car drove the same in a rash and negligent manner and suddenly turned the car, as a result of which, the car was out of control and it fell SCCH-18 3 MVC No. 5135/2021 down and rotated on the side of the said road. Due to the impact, the petitioner and his friends were sustained grievous injuries, the offending vehicle was completely damaged.
(b) It is further pleaded that immediately after the accident the petitioner was shifted to Vedanta Hospital, Vijayapura and then he was shifted to Vasudeva Hospital wherein he was treated as an inpatient from 9.1.2021 to 12.1.2021. Again he was shifted to Sparsh Multi Speciality Hospital, Bengaluru, wherein he was treated as an inpatient from 13.1.2021 to 10.3.2021.
The petitioner has spent sum of Rs.44,98,831/- towards medical expenses, treatment charges, medicine, nourishment food and for regular treatment.
(c) It is further case of the petitioner that at the time of the accident the petitioner was aged about 24 years. He was running a provision stores and getting an income of Rs.45,000/- per month. On account of accidental injuries the family members have lost the only bread earner of the family. The respondent No.1 being the owner and the respondent No.2 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation of Rs.99,99,999/- with interest from the date of petition till realization.
SCCH-18 4 MVC No. 5135/20213. In response to the notice the respondents No.1 & 2 have appeared through their respective advocates on record. The respondent No.2 has filed the written statement but, the respondent No.1 has not chosen to file written statement.
4(a) The respondent No.2 in its written statement has denied the entire case of the petitioner as false. The respondent No.1 has denied the manner in which the accident took place, injuries sustained, avocation, age and income of the petitioner as false. However, it is admitted that the offending vehicle was insured with the respondent No.1 and it is subject to terms and conditions of the policy.
4(b) It is the defense of the respondent No.2 that the driver of the offending vehicle was not holding valid and effective driving license at the time of the accident. It is further contended that the vehicle was used in public place without having a valid permit and fitness certificate.
4(c) It is further contention of the respondent No.2 that the offending vehicle was not at all involved in the accident. It is contended that the compensation and interest claimed by the petitioner is exorbitant. Upon these grounds, it is prayed to dismiss the petition.
SCCH-18 5 MVC No. 5135/20215. On the basis of the pleadings, my predecessor- in-office has framed the following issues:
1. Whether the petitioner proves that he had sustained grievous injuries in a motor vehicle accident that was taken place on 9.1.2021 at about 5.30 p.m. near Sangogi, Hiremasali due to the rash and negligent driving of the driver of the car bearing registration No.KA-03-AC-
5300 in actionable negligence?
2. Whether the petitioner is entitled for compensation as prayed for? If so, at what rate? from whom?
3. What order or award?
6. The petitioner to prove his case he himself examined as PW1 and also examined two witnesses namely Manju Ram Shillikshathri and Dr.Shailesh A.V.Rao as PW2 and 3 respectively and got the documents marked at Ex.P1 to Ex.P25. On the other hand, the respondent No.2 has examined Senior Executive - TP claims of the Insurance-Company as RW1 and got the documents marked at Ex.R1 to Ex.R4.
7. Having heard the arguments of learned counsel for the petitioner and respondent No.2 and on perusal of the materials available on record including the written arguments submitted by the learned counsel for the petitioner, the answers to the above issues are as under:
SCCH-18 6 MVC No. 5135/2021Issue No.1 - In the Affirmative;
Issue No.2 - See the finding;
Issue No.3- As per the final order for the following:
REASONS Issue No.1:
8. It is the case of the petitioner that the petitioner has sustained grievous injuries in the accident which is result of rash and negligent driving of the driver of the offending vehicle whereas the respondent No.2 has denied the case of the petitioner and has taken up the defense that the offending vehicle was not involved in the accident.
9. The petitioner/PW1 in his examination-in-chief by way of affidavit has reiterated the averments made in the petition with regard to the alleged accident. The petitioner in support of his oral evidence to prove issue No.1 has placed reliance upon Ex.P1 to Ex.P7.
10. Ex.P1 is the true copy of the F.I.R. in Crime No.9/2021 Indi Rural Police Station, Vijayapura. Ex.P2 is the true copy of the first information statement which was given by petitioner when he was in Vasudeva Hospital, Vijayapura. Ex.P3 is the true copy SCCH-18 7 MVC No. 5135/2021 of the crime detail form. Ex.P4 is the true copy of the IMV report. Ex.P5 is the true copy of the wound certificate of the petitioner. Ex.P6 is the true copy of the hand sketch. Ex.P7 is the true copy of the charge sheet in Cr.No.9/2021 of Indi Rural Police Station, Vijayapura.
11. PW1/petitioner was subjected to lengthy cross-examination on behalf of the respondent No.2, but nothing was elicited from the mouth of petitioner which supports the defence of the respondent No.2 that the offending vehicle was not involved in the accident and it was implicated with the help of the owner and police.
12. On perusal of the aforesaid police documents at Ex.P1 to P7, it could be seen that based upon the first information statement given by the petitioner, the S.H.O. of Indi Rural Police Station, Vijayapura has registered the case against the driver of the offending vehicle for the offenses punishable under Section 279, 337 and 338 of I.P.C. Upon investigation, the investigation officer has filed the charge sheet against the driver of the offending vehicle for the offences punishable under sections 279. 337, 338 of IPC and 3 read with 181 of IMV Act.
SCCH-18 8 MVC No. 5135/202113. Though the respondent No.2 has taken up the defense that the offending vehicle was not involved in accident, the respondent No.2 has failed to substantiate the same either by getting any admission from the mouth of the PW1 who is the injured in the alleged accident or examining any independent witness or at least examining the driver of the offending vehicle to prove the defense. Hence, it is held that the respondent No.2 has failed to prove the defense that offending vehicle was not involved in the accident.
14. Over all assessing the evidence of PW1 coupled with police documents at Ex.P1 to P7, it is held that the petitioner has sustained grievous injuries in the accident which is result of rash and negligent driving of the driver of the offending vehicle. Hence, issue No.1 is answered in the Affirmative.
Issue No.2:
15. The petitioner has claimed the compensation of Rs.99,99,999/- under different heads.
16. In Raj Kumar Vs. Ajay Kumar and another case, which is reported in (2011) 1 SCC 343, wherein the Hon'ble Supreme Court has laid down general principles relating to compensation in injury SCCH-18 9 MVC No. 5135/2021 cases and the heads under which compensation to be awarded in personal injury cases. The Hon'ble Supreme Court in Pappu Deo Yadav Vs. Naresh Kumar and Others reported in AIR 2020 SCC 4424 wherein it is held that:
"In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit- pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim."SCCH-18 10 MVC No. 5135/2021
17. It is the argument of the learned counsel for the petitioner that petitioner is bedridden that means to say that he is in vegetative condition as such he could not able to do anything even including his day to day activities. He was running a provision stores. There are no bread earners in the family of the petitioner. At the time of the accident the petitioner was aged about 24 years, unmarried and was earning Rs.45,000/- per month. Due to the accident, petitioner is in wheel chair and he could not able to stand and to do day-to-day activities without the support of attendant. The disability caused in the accident is taken away the life of petitioner. Though the physical disability is 90%, the functional disability is 100%. Therefore, the just and reasonable compensation be granted as prayed for. Learned counsel for the petitioner in support of his argument has placed reliance upon the following decisions:
i) 2022 Live Law (SC 330) between Master Ayush Vs. the Branch Manager Reliance General Insurance Co. Ltd.,;
ii) AIR 2020 SC 776 between Kajal Vs. Jagadish Chand and others.
18. By keeping in mind the principle laid down in Raj Kumar Vs. Ajay Kumar and another; Pappu Deo SCCH-18 11 MVC No. 5135/2021 Yadav Vs. Naresh Kumar and Others's (AIR 2020 SCC 4424); Perminder Singh Vs. New India Assurance Company Ltd. and others (2019 (7) SCC 217); Kajal Vs. Jagadish Chand and others (2020 (4) SCC 413); V. Mekala Vs. M. Malathi and another (Civil AppealNo.4880/2014 decided on 25.4.2014) & Master Ayush Vs. the Branch Manager Reliance General Insurance Co. Ltd. ((2022)7 SCC 738)', cases' let this Tribunal to see the case on hand:
i. LOSS OF EARNINGS:
19. In the Raj Kumar's case referred supra the Hon'ble Supreme Court has also held that "Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability as the percentage of economic loss that is percentage of loss of earning capacity arising from a permanent disability will be different from the percentage of permanent disability." Further, at para No.10 the Hon'ble Supreme Court has elaborately discussed with examples and also given three steps for ascertainment of the effect of the permanent disability on the actual earning capacity.SCCH-18 12 MVC No. 5135/2021
20. The petitioner in the petition as well as in the evidence has stated that on account of accidental injuries he is completely bedridden in position. The movements of the four limbs also restricted. The accidental injuries completely taken away the life of petitioner. The disability is permanent in nature. The petitioner could not do any work.
21. The petitioner to prove the disability sustained in the alleged accident has examined Dr. Shailesh A.V.Rao as PW3. PW3 in his examination-in-
chief by way of affidavit has stated that he has been working as consultant Neurosurgeon Padmashree Diagnostics, Bengaluru. PW3 has deposed that the petitioner received first treatment at Vedanta Hospital on 9.1.2021 and was discharged on 10.1.2021, initially referred to for higher treatment to Vasudev Hospital, Bijapur wherein he has taken treatment from10.1.2021 to 12.1.2021. The petitioner was diagnosed with a cervical spine injury with respiratory and sphincter involvement.
22. PW3 has further deposed that on 13.1.2021 the petitioner was admitted to Sparsh Hospital, Bengaluru. At the time of treatment the petitioner exhibited weakness in all four limbs with a power range SCCH-18 13 MVC No. 5135/2021 on 1 3/5 in the upper limbs and 0/5 in the lower limbs. Numbness below T4 was also noted. Further diagnostic tests reveals the spondyloptosis a C7-C11 level on CT scan of the spine and spinal cord injury with cord edema from C7 to T1 on MRI of the cervical spine and underwent cervical traction,C5-C6-C7 laminectomy and C4 to D2 fusion on 18.1.2021. A tracheostomy was also performed and he was gradually weaned off the mechanical ventilator. Upon discharge on 29.1.2021 the power in the upper limbs improved to 2-4/5 while the lower limbs remained at 0/5 and numbness persisted below D4. However, he has been unable to resume his previous work in the cloth shop due to weakness in all four limbs.
23. PW3 has further deposed that upon physical examination the petitioner was unable to stand or walk, spastic weakness in the lower limbs, weakness in the upper limbs, numbness below T4 and use of urinary catheter. PW3 has further deposed that petitioner's disability under section F amounts to 90% of the whole body.
24. P.W.3 was subjected to cross-examination on behalf of the respondent No.2 wherein PW3 has deposed that to maintain the present condition SCCH-18 14 MVC No. 5135/2021 physiotherapy is absolutely required. Though PW3 was subjected to lengthy cross-examination nothing was elicited to disbelieve the evidence of PW3 in his examination-in-chief.
25. On scrutiny of the oral evidence of PW3 coupled with medical documents of the petitioner, it is no doubt that the petitioner sustained grievous injuries to his spine and and at present he is bedridden and he has been confined to wheel chair. As per the opinion of PW3 who is a qualified doctor the petitioner was found to have sever spastic weakness, which amounts to disability of 90% to whole body. From this it could be said that petitioner unable to do any work including his day to day personal works such as attending nature call on his own without support of anyone. The injuries in the accident spoiled life of young youth. In the clear opinion of this Tribunal the disability caused in the accident affects 100% on his avocation that means to say the functional disability is 100%.
26. The petitioner has stated that he was aged about 24 years at the time of accident. To prove the age, petitioner has relied upon Ex.P9, notarised copy of Aadhar Card wherein it could be seen that petitioner was born on 31.5.1996. The accident in question took SCCH-18 15 MVC No. 5135/2021 place on 9.1.2021. From this it is no doubt that at the time of the accident injured petitioner was aged about 25 years.
27. In the petition and in his first examination- in-chief it is stated that injured petitioner was running a provision store and was earning Rs.45,000/- per month whereas the petitioner in his further examination-in-chief dated 13.7.2023 has deposed that he entered in to the mutual agreement with Manjuram Shillikshatri to do the cloth business on 10.1.2020 though which was registered in the year 2017. The said business was running in the name and style of "Ambha Dresses" situated at T.B.Nagar, M.G. Patil hospital, Indi. Turnover of the business is more than Rs.50,000/- per month.
28. The petitioner in support of his oral evidence has placed reliance upon Ex.P12, Ex.P13 and Ex.P21. Ex.P12 is the unregistered partnership agreement alleged to have been entered into between the petitioner and one Manjuram Shillikshatri on 10.1.2020. Ex.P13 is the bunch of invoices having purchase of materials for the alleged business. Ex.P21 is the income tax returns of the assessment year 2019-2020 & 2020- 2021.
SCCH-18 16 MVC No. 5135/202129. The petitioner in support of his oral evidence has also examined his alleged partner, Manjuram Shillikshatri as PW2. PW2 in his examination-in-chief has supported the case of the petitioner and has deposed that he himself and the petitioner entered into partnership agreement on 10.1.2020 for running cloth business in the name and style of Ambha Dresses". The petitioner and he himself invested for the said business. Out of the profit they were sharing profits equally. After the accident he could not able to run the business. They have paid IT returns every year in the name of Ambha Dresses.
30. Ex.P12 is the unregistered partnership deed. Ex.P13 is the 14 invoices having purchase of the materials. Based upon these documents it could not be said that the petitioner and the PW2 were the partners and they were running the business in the name and style of Ambha Dresses". Ex.P21 is the IT returns of the assessment year 2019-2020 and 2020- 2021 speak that for the above assessment years IT returns was submitted by PW2 in individual capacity, but not in the name of "Ambha Dresses". Based upon these documents it could not be said that the petitioner was doing cloth business along with PW2 and he was SCCH-18 17 MVC No. 5135/2021 getting income more than Rs.50,000/- in the said business.
31. In the absence of material evidence with regard to income of the injured petitioner, by considering the age and costs of living the Tribunal has to assess the income of deceased. The Hon'ble High Court of Karnataka in M.F.A.No.822/2017 between Shri Yashwanth Kancan Vs. Sudhakara and another decided on 07.02.2020 has taken up the notional income of the deceased person at Rs.6,500/- as determined by the Karnataka State Legal Services Authority for the Motor Vehicle Accident victim of the year 2011. The relevant para 12 of the said judgment is as under:
"Having regard to the injury suffered by the claimant and since there was no credible evidence adduced before the Tribunal, it would be safe to assume the notional income of the deceased as Rs.6,500/- as determined by the Karnataka State Legal Services Authority for the Motor Vehicle accident victim of the year 2011."SCCH-18 18 MVC No. 5135/2021
32. Admittedly, this accident took place in the year 2021. As determined by the Karnataka State Legal Services Authority for fixing of compensation during the course of negotiation for settlement before the Lok Adalath, in the absence of the evidence of income, the notional income of the person would be Rs.15,000/- for the year 2021.
33. By considering the age of the injured petitioner and having considering the notional income determined above, this tribunal is of the view that it is just and proper to take the income of the injured petitioner of Rs.15,000/- per month in the absence of the documentary evidence.
34. In Pappu Deo Yadav Vs. Naresh Kumar and Others' case referred supra the Hon'ble Supreme Court has held that the future prospects can be applied even in the case of permanent disability. The concept of future prospects is not only applicable in the death cases, it is also applicable in case of victim suffered permanent disability of serious nature. The Hon'ble Supreme Court at paragraph No.7 of the aforesaid decision has held that:
"7. Two questions arise for consideration: one, whether in cases of SCCH-18 19 MVC No. 5135/2021 permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too; and two, the extent of disability. On the first question, the High Court no doubt, is technically correct in holding that Pranay Sethi involved assessment of compensation in a case where the victim died. However, it went wrong in saying that later, the three- judge bench decision in Jagdish was not binding, but rather that the subsequent decision in Anant to the extent that it did not award compensation for future prospects, was binding. This court is of the opinion that there was no justification for the High Court to have read the previous rulings of this court, to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of Pranay Sethi is illogical, because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victim's death."
35. By applying the principle laid down in Pappu Deo Yadav's case referred supra, this Tribunal is of the considered opinion that while awarding compensation under the head of future loss of income it is proper to add future prospects as scheduled in Pranay Sethi's case.
SCCH-18 20 MVC No. 5135/202136. As laid down by the Hon'ble Supreme Court in Spl. Leave (Civil) No.25590 of 2014 (reported in 2017(2) MACR 1514 (SC)) between National Insurance Company Limited Vs. Pranay Shethi and others, future prospects has to be added to the income of the petitioner. As the petitioner was aged about 25 years, 40% of his income has to be added as future prospects. By considering the income of petitioner of Rs.15,000/- per month, his income per year comes to Rs.1,80,000/-. After adding 40% of his income to the original annual income, it comes to Rs.2,52,000/- (Rs.1,80,000/-+Rs.72,000/-). Due to 100% disability, annual loss of income would be Rs.2,52,000/-. Since the petitioner was aged about 25 years at the time of accident, the suitable multiplier is 18. So, the loss of future earning capacity due to the said disability of the petitioner is of Rs.45,36,000/- (15,000/-+40%)X12X18 =Rs.45,36,000/-). Hence, the petitioner is entitled to Rs.45,36,000/- under the head future loss of income.
37. Since the future loss of income of the petitioner was considered from the date of accident, the question of awarding compensation under the head loss of income during laid up period does not warrant.
SCCH-18 21 MVC No. 5135/2021ii. Expenses relating to treatment, hospitalization, medicines shortly referred to as Medical expenses:
38. In the petition it is stated that as on the date of filing of petition he has spent Rs.44,98,831/- towards medical expenses. PW1 in his examination-in-chief has deposed that the medical expenses of the petitioner so far of Rs.59,19,503/-. In this regard the petitioner has produced medical bills which are collectively marked at Ex.P11 (311 bills which includes advance receipt and one ambulance bill also), Ex.P19 (9 medical bills) & Ex.P20 (2 bills ).
39. Having seen the calculation made by the petitioner in the memo of calculation it appears that by including the amount covered under the advance receipts sum of Rs.21,61,367/- was calculated. On careful scrutiny of the medical bills excluding ambulance bill and advance receipts it is seen that sum of Rs.14,85,260/- was spent towards medical expenses of the petitioner. Hence, it is held that the petitioner is entitled to Rs.14,85,260/- under the head medical expenses.
SCCH-18 22 MVC No. 5135/2021iii. Nourishing food expenses, attendant and conveyance:
a) Nourishing Food:
40. Taking nourishment food is equally necessary along with medicines for fast recovery from the accidental injuries. The petitioner has taken treatment as an inpatient for a period of 61 days as observed supra.
41. It is true, no material has been placed by the petitioner with regard to amount spent towards nourishment food. Even it is also difficult to produce and prove the same by way of document. Having regard to the injuries sustained by the petitioner it could be said that throughout the life of the petitioner he has to be provided with adequate nutritious food to maintain present status of the petitioner. While awarding compensation under the head loss of future income, no amount has been deducted. So, that amount could be made use of for the purpose of nutritious food. Along with that, it is reasonable to award Rs.1,00,000/- towards nourishment food which was provided to the petitioner from the date of the accident till today.
SCCH-18 23 MVC No. 5135/2021b. Conveyance:
42. Since the petitioner could not able to stand and sit, it is not possible to take the petitioner in any of public conveyance to the hospital. Either parents of the petitioner or any attendant who takes care of the petitioner has to engage taxi or ambulance whenever they want to take the petitioner for follow-up treatment. Hence, it is reasonable to award Rs.1,00,000/- towards past and future conveyance.
c. Attendant charges:
43. In Kajal's case referred supra the Hon'ble Apex Court has held that multiplier system should be followed not only for determining the compensation on account of loss of income, but also for determining the attendance charges etc., In the said judgment Hon"ble Apex Court has also observed that, "at the same time, we are clearly of the view that the tortfeasor cannot take the benefit of gratuitous services rendered by the family members. When this small girl was taken to PGI, Chandigarh or was in her village, family members must have accompanied with her. Even if we are not paying them the attendant charges they must be paid for loss of their wages and the amount they would have spent in the hospital for food etc.,"
SCCH-18 24 MVC No. 5135/202144. It is true, in the case on hand the petitioner has not produced any document to show that one attendant or nurse was engaged to look after him. It is also relevant to note that the petitioner is native of Bijapur. Since the petitioner requires higher treatment, he was shifted to Sparsh Hospital, Bengaluru from Bijapur. Since the parents of the petitioner could not able to bare the expenses of the Sparsh Hospital, Bengaluru, against the medical advise the petitioner was discharged from the Sparsh Hospital, Bengaluru and again he was shifted to Vasudeva Hospital, Bijapur. From the date of accident for a period of three months the petitioner was treated as an inpatient. Thereafter, he was discharged with the advise of follow- up treatment. As could be seen from the medical bills placed by the petitioner, the petitioner has taken treatment in various hospitals.
45. The Hon'ble Apex Court in Kajal's case referred supra by considering the age of the child and the injuries sustained has observed that the petitioner therein will require two attendants. In the above said case the Hon'ble Apex Court has taken the fees/salary of one attendant at Rs.5,000/- which is minimum wages payable in the State of Chandigar for skilled labour for the year 2007.
SCCH-18 25 MVC No. 5135/202146. As noted above the petitioner is confined to wheel chair and bed. Though in the case on hand the petitioner is major, he could not able to attend the nature call on his own and he could not able to take food on his own without the support of the attendant. He could not able to stand and walk even with the support of the attendant. The petitioner requires attendant who though may not be medically trained must be capable to handle the bed ridden petitioner. Thus, certainly one attendant is absolutely required to take care of the petitioner throughout his life. Even if it is considered that either the mother or sister or father of the petitioner might be taking care of the petitioner without appointing the attendant then also they will leave their wages for taking care of the petitioner. If the minimum wages of a person in the year 2021 has been considered then it comes to Rs.15,000/- per month. Having considering that the petitioner is the resident of Hiremasali, Tamba, Indi Taluk, Vijayapura, it is proper to take the attendant charges of Rs.8,000/- per month. The multiplier applicable to the case on hand is '18'. If the attendant charges of Rs.8,000/- per month has been considered and the multiplier 18 is applied then the petitioner is entitled to Rs.17,28,000/- (Rs.8,000/- X12X18)towards attendance charges.
SCCH-18 26 MVC No. 5135/2021iv. Pain, Sufferings and Trauma:
47. The petitioner was aged about 25 years at the time of the accident. Due to the accident he had permanent disability as noted above. He was not born with permanent disability. As observed supra, the petitioner has taken treatment as an inpatient for a period of 61 days and still the petitioner is in vegetative condition. From this any lay man could imagine the pain and suffering and trauma undergone by the petitioner who was aged about 25 years and born in middle class family. It is not possible to imagine the mental pain of the petitioner. By considering the injuries sustained by the petitioner as noted above, its effect and also number of days treatment taken by the petitioner, this Tribunal is of the considered opinion that it is just and proper to award reasonable and just compensation of Rs.1,50,000/- to the petitioner under the head pain and sufferings.
v. Loss of Amenities and discomfort:
48. As per the discharge summary at Ex.P8 the petitioner has sustained fracture of bilateral laminae of C7 vertebra, fractures of spinous process and SCCH-18 27 MVC No. 5135/2021 transverse processes of C7 vertebra, fracture of right superior articular facet of D1 vertebra, fracture of anterosuperior corner of C7 vertebral body, fracture of left inferior articular facet of C6 vertebra, fracture of spinous process of C7 vertebra. From the date of accident the petitioner is bedridden. The petitioner was found to have weakness in all four limbs, which amounts to disability of 90% to whole body.
49. Social withdrawal can often result, leaving the injured person feeling isolated. His personal relationships can be heavily affected. The petitioner could not able to enjoy his life as he was enjoying and others were enjoying due to the alleged accident. Overall considering the difficulties of the petitioner it is no doubt that the physical disabilities noted above not only put the petitioner in grief and mental sufferings it also effect on his happiness and it is total discomfort in his life, it has taken away his amenities. By considering all these aspects this Tribunal is of the considered opinion that it is just and proper to award reasonable compensation of Rs.1,00,000/- under the head amenities, happiness and discomfort.
SCCH-18 28 MVC No. 5135/2021vi. Permanent disability, loss of expectation of life:
50. It is no doubt that the petitioner has sustained grievous injuries in the alleged accident as a result he has permanent disability as noted above. The disability sustained by the petitioner is permanent disability but not temporary. This disability is because of the accident. This disability does not only affect on his amenities, happiness, it also shortens the expected life. Under such circumstances, it is just and proper to award reasonable compensation under the head permanent physical disability and loss of expectation of life. Hence, the petitioner is entitled to compensation of Rs.50,000/- under the head permanent physical disability and loss of expectation of life.
vii. Loss of marriage prospects:
51. As observed above, the whole body disability of the petitioner is 90%. It is true, the petitioner has 100% functional disability. From this it could be said that there is no chance of marriage of the petitioner. The accidental injury spoiled the life of the petitioner. It has taken away the marital life of the young age petitioner. It is not possible to fill-up the same by awarding compensation. The Hon'ble Supreme Court in a V. Mekala's case and Kajal's case referred supra has SCCH-18 29 MVC No. 5135/2021 awarded compensation of Rs.3,00,000/- towards marriage prospects of injured petitioner who was aged about 25 years and 12 years respectively. By placing reliance upon the decisions of the Hon'ble Supreme Court this Tribunal is of the considered opinion that it is reasonable to award just compensation of Rs.3,00,000/- towards loss of marriage prospects.
viii. Future Medical Expenses:
52. From the evidence of the PW1 and PW3 it is no doubt that to maintain the present status of the injured petitioner parents of the petitioner has to provide regular physiotherapy throughout the life of the petitioner. Under such circumstances, this Tribunal is of the considered opinion that it is just and proper to award reasonable and just compensation of Rs.2,00,000/- to the petitioner under the head future medical expenses.
Heads of compensation Amount
Loss of Future Income Rs.45,36,000-00
Medical Expenses Rs.14,85,260-00
Food and Nourishment Rs. 1,00,000-00
Conveyance Rs. 1,00,000-00
Attendant charges Rs.17,28,000-00
SCCH-18 30 MVC No. 5135/2021
Pain, suffering and trauma Rs. 1,50,000-00
Loss of amenities, future Rs. 1,00,000-00
happiness, discomfort
Permanent disability and loss of Rs. 50,000-00
expectation of life.
Loss of marriage prospects Rs. 3,00,000-00
Future Medical expenses Rs. 2,00,000-00
Total Rs.87,49,260-00
In all, the petitioner is entitled for the
compensation of Rs.87,49,260/- which is rounded to Rs.87,49,500/- (Rupees Eighty Seven Lakh Forty Nine Thousand & Five Hundred only).
Regarding the liability to pay the compensation amount:
53. While answering issue No.1, it is held that the accident has occurred on account of the negligence of the driver of the offending vehicle. The respondent No.1 being the owner of the offending vehicle is liable to pay the compensation amount to the petitioner.
SCCH-18 31 MVC No. 5135/202154. It is one of the defenses of the respondent No.2 that the driver of the offending vehicle has not possessed driving license to drive the offending vehicle as on the date of accident.
55. As could be seen from the charge sheet, investigation officer has filed the charge sheet against the driver of the offending vehicle for the offences punishable under section 279, 337 & 338 of IPC as well as section 3 R/W section 181 of IMV Act. In the charge sheet it is alleged that the driver of the offending vehicle has not possessed driving licence to drive the offending vehicle as on the date of accident.
56. Though the respondent No.2 tried to examine the driver of the offending vehicle, he could not able to secure the driver of the offending vehicle. It is worth to note that the respondent No.1 who is the owner of the offending vehicle has appeared through advocate. When the respondent No.1 appeared through advocate it is bounden duty of the respondent No.1 to produce driving licence of the driver of the offending vehicle. But, the respondent No.1 has not produced the driving licence of the driver of the offending vehicle. Under the circumstances, it could be inferred that since the driver of the offending vehicle has not possessed the driving SCCH-18 32 MVC No. 5135/2021 licence as on the date of the accident, the respondent No.1 has not produced the same.
57. It is also worth to note that the petitioner has filed I.A. III under order I Rule 10 of CPC on 19.9.2023 with a prayer to implead the driver of the offending vehicle as one of the respondents in the case on the ground that the driver of the offending vehicle has not possessed the driving licence as on the date of accident, as such he is also liable to pay the compensation. In the application, the petitioner himself has admitted that the driver of the offending vehicle has not possessed the driving licence to drive the offending vehicle as on the date of the accident. In view of the non-production of the document by the respondent No.1 coupled with the charge sheet and the statement made by the petitioner in the affidavit annexed to the application filed under order I rule 10 of CPC it could be said that the respondent No.1 is the registered owner of the offending vehicle is allowed the driver to drive the vehicle though he has not possessed the driving licence to drive the offending vehicle. Hence, it is held that as rightly argued by the learned counsel for the respondent No.2 the respondent No.1 has breached the fundamental condition of the policy by allowing the driver who has no driving licence to SCCH-18 33 MVC No. 5135/2021 drive the vehicle.
58. In a decision reported in 2013 (3) T.A.C. 29 (S.C.), between United India Insurance Co. Ltd., through its Divisional Manager Vs. Sujata Arora and others, wherein it is held that: when it is found that offending vehicle was driven by driver who was either holding on license or a fake license, then it amounts to violation of terms and conditions of policy and no liability can be fastened upon Insurance Company. From this it is clear that riding/driving vehicle on public road without having driveling license it is not only an offense punishable under section 3(1) r/w 181 of MV Act but also fundamental and statutory breach of insurance policy. Hence, the respondent No.2 is not liable to indemnify the respondent No.1 for the loss suffered by him though there was insurance on the date of accident. Hence, it is held that the respondent No.2 is not liable to pay the compensation and he is absolved from its liability.
59. It is the argument of the learned counsel for the petitioner that if the Tribunal comes to the conclusion that the respondent No.1 has violated the condition of the policy then direct the respondent No.2 to pay the compensation since the petitioner is a third SCCH-18 34 MVC No. 5135/2021 party and he cannot be made to suffer due to the fault of the owner of the offending vehicle and same can be recovered by the insurer from the owner. The learned counsel for the petitioner in support of his argument has placed reliance upon the following decisions:
1. (2018) 3 Supreme Court Cases 208 between Pappu & Others Vs. Vinod Kumar Lamba & Another wherein it is held that:
Motor Vehicles Act, 1988, --Ss.149(2) 166 & 168 --- Defence of unauthorised driver with invalid licence---Insurer succeeding in establishing its defence--Consequence of -
Held, owner of vehicle had produced insurance certificate indicating that vehicle was comprehensively insured by insurance company for unlimited liability---Applying Swaran Singh, (2004) 3 SCC 297, to subserve ends of justice, insurer directed to pay claim amount awarded by Tribunal to claimants in first instance, with liberty to recover the same from owner of the vehicle in accordance with law.
2. 2018 AIAR (Civil) 805 between Shamanna and another Appellants Vs. The Divisional Manager Oriental Insurance Co. Ltd., and Ors. Respondents wherein it is held that:
"Motor Vehicles Act, 1988, Sec.166 - Claim for compensation arising from motor vehicle accident - Accident claim tribunal passing an award for compensation in SCCH-18 35 MVC No. 5135/2021 favour of the claimants and directing the insurer of the offending motor cycle to pay the awarded compensation amount to the claimants in the first instance and then recover the same from the insured/the owner of the offending motor cycles - Judgment of the High Court, though enhancing the amount of the award yet reversing the same for "pay and recover"
holding that the owner of vehicle is not liable to pay the compensation to the claimants - Held not sustainable and set aside and the insurance company directed to pay the enhanced compensation along with accrued interest and recover the same from the owner of the vehicle."
60. Per contra, it is the argument of the learned counsel for the respondent No.2 that since the respondent No.1 has breached the fundamental and statutory conditions of the policy, the respondent No.2 is not liable to pay the compensation and the theory of pay and recovery does not apply to the case on hand as owner himself committed breach of policy condition.
61. In this case it is admitted fact that the offending vehicle is covered with valid insurance at the time of alleged accident. It is no doubt, in the case on hand, the respondent No.2 insurance company has proved its defense in accordance with provision of SCCH-18 36 MVC No. 5135/2021 Sec.149(2) and as such insurance company is not liable to pay the compensation since the respondent No.1 has violated the condition of the policy, which is fundamental breach. But, on the said ground, the petitioner is third party, cannot be made to suffer due to fault of owner when the vehicle is covered with insurance at relevant point of time. By placing reliance upon the principle laid down in the Amrit Paul Singh & Anr. Vs. TATA AIG General Insurance Company Ltd. & Ors. ( 2018 SAR (Civil) 768)'s Case; Shamanna and another Vs. The Divisional Manager Oriental Insurance Co. Ltd., and Ors.' and Papu & Others V/s Vinod Kumar Lamba & Another's case referred supra and in view of aforesaid discussion it is proper to direct the respondent No.2 to pay the compensation by reserving liberty to recover the same from the respondent No.1, owner of the offending vehicle in the manner provided under law.
62. So far as interest on compensation is concerned, this tribunal likes to place reliance upon the decision of the Hon'ble High Court of Karnataka in M.F.A. 13390/2014 clubbed with M.F.A. 25107/2013 dated 07.03.2018, between Vijay Ishwar Jadhav and others Vs. the Divisional Manager, the Bajaj Allianz General Insurance Co. Ltd., wherein the Hon'ble High SCCH-18 37 MVC No. 5135/2021 Court of Karnataka has elaborately discussed with regard to the rate of interest to be awarded in the case arising out of the accident, wherein at para No.15 it is held that "However, the provisions of Section 149 (1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted in Section 169 of the M.V. Act and therefore, the provisions of Section 34 of C.P.C. to that extent become invocable on the general principles of construction of statutes namely the special law over rides the general law. Therefore, in the absence of any other law relating to interest on judgments, the MACT has to follow the provisions of Section 34 of C.P.C., 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded." By relying upon the Vijay Ishwar Jadhav' case referred supra, this tribunal is of the opinion that it is just and proper to award interest at the rate of 6% per annum on sum of Rs.68,21,500/- from the date of the petition till its realization. It is made clear that the petitioner is not entitled interest on sum of Rs.17,28,000/- which is awarded under the head of attendant charges and Rs.2,00,000/- which is awarded under the head of SCCH-18 38 MVC No. 5135/2021 future medical expenses. In view of aforesaid discussion, the issue No.2 is answered accordingly.
Issue No.3:
63. In view of findings on issue No.1 and 2, this tribunal proceeds to pass the following:
ORDER Petition filed by the petitioner U/s 166 of Indian Motor Vehicles Act, 1988 is allowed in part with costs.
Petitioner is entitled for compensation of Rs.87,49,500/- (Rupees Eighty Seven Lakh Forty Nine Thousand & Five Hundred only) from the respondent No.1.
The petitioner is entitled to interest on sum of Rs.68,21,500/- (Rupees Sixty Eight Lakh Twenty One Thousand and Five Hundred only) at the rate of 6% per annum from the date of petition till realization of the said amount, but petitioner is not entitled to interest on sum of Rs.19,28,000/- (Rupees Nineteen Lakh Twenty Eight Thousand only).SCCH-18 39 MVC No. 5135/2021
Respondent No.1 is liable to pay the award amount. The respondent No.2 is not liable to indemnify the respondent No.1.
However, under the principle of 'Pay and Recovery' the respondent No.2 is directed to pay the award amount with accrued interest thereon to the petitioner within 60 days from the date of this order by reserving liberty to the respondent No.2 to recover the same from the respondent No.1 in accordance with law.
Out of the amount so awarded to the petitioner, 60% with proportionate interest is ordered to be deposited in the name of petitioner in any of the nationalized or schedule bank of choice of the petitioner initially for a period of 5 years subject to auto renewal till further Order of the Tribunal subject to withdrawing periodical interest from time to time by the petitioner and remaining amount with proportionate interest is ordered to be credited to the account of the petitioner through e-payment.
Advocate fee is fixed at Rs.2,000/-.
SCCH-18 40 MVC No. 5135/2021Draw award accordingly.
(Dictated to the stenographer directly on computer, corrected by me and then pronounced in open court on this the 18th day of July 2024).
(LAVANYA H.N.) III ADDL.SMALL CAUSES JUDGE, MEMBER, MACT & ACJM, BANGALORE.
ANNEXURE List of witnesses examined on petitioners' side:
PW1 : Sunil Shreesail Killiket; PW2 : Manju Ram Shillikshathri; PW3 : Dr.Shailesh A.V.Rao.
List of documents exhibited on petitioners' side:
Ex.P1 : True copy of FIR;
Ex.P2 : True copy of FIS;
Ex.P3 : True copy of Spot mahazar;
Ex.P4 : True copy of IMV report;
Ex.P5 : True copy of Wound certificate;
Ex.P6 : True copy of Sketch;
Ex.P7 : True copy of Charge sheet;
Ex.P8 : Discharge summaries;
Ex.P9 : Noarised copy of Aadhar card;
Ex.P10 : Notarised copy of disability
certificate;
Ex.P11 : Medical bills;
Ex.P12 : Partnership agreement;
SCCH-18 41 MVC No. 5135/2021
Ex.P13 : Invoice bills;
Ex.P14 : Letter pertaining to
physiotherapy;
Ex.P15 : Notarised copy of Aadhar card;
Ex.P16 : X-rays;
Ex.P17 : Outpatient report;
Ex.P18 : Consultation report;
Ex.P19 : Medical bills;
Ex.P20 : Medical bills;
Ex.P21 : IT returns;
Ex.P22 : 65 B Certificate;
Ex.P23 : X-ray report;
Ex.P24 : OPD record;
Ex.P25 : Digital x-ray.
List of witnesses examined on respondents' side:
RW1 : Ruchitha Runukesh.
List of documents exhibited on respondents' side:
Ex.R1 : Authorisation letter;
Ex.R2 : Policy copy;
Ex.R3 : Notice sent to respondent No.1;
Ex.R4 : Postal acknowledgment.
III ADDL.SMALL CAUSES JUDGE,
MEMBER, MACT & ACJM,
BANGALURU.