Bangalore District Court
And He Can Lead Normal Life And Therefore vs No.1 Would Have Acted As Required Under ... on 10 April, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 10th day of April, 2017.
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.2170/2015
Sri. Mutturaj Biradar, ..... PETITIONER
S/o. S.G. Biradar,
Aged 24 years,
No.772, Viveknagara,
Opp. Chandpumasjid,
Bijapur.
(By Sri. Raghavendra Edagi, Adv.,)
V/s
1. Smt. Manjula, ..... RESPONDENTS
W/o. Satish Kumar,
No.339, 16th Cross,
RMV 2nd Stage,
Bengaluru - 94.
2. Roshan Kumar. S.,
S/o. Sukumar,
No.183, 2nd Main,
AMCO Layout,
Sahakaranagara,
Bengaluru - 92.
3. HDFC ERGO GICL,
No.25/1, 2nd Floor,
Shankaranarayana Building,
Building No.2,
M.G. Road,
2 M.V.C.NO.2170/2015
(SCCH-7)
Bengaluru - 560 001.
(R-1 and R-2 By Sri. G.B. Sharath
Gowda, Adv.,)
(R-3 By Sri. Y.P. Venkatapathi, Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 30,00,000/- with interest at the rate of 16% per annum and costs.
2. The brief averments of the Petitioner's case are as follows;
a) He is aged 23 years and a resident of Bijapur, who was working in Bengaluru, on the day, when the occurrence of the said accident on 13.09.2014. He was a pillion rider with his friend named Ishwar Pujari in Pulsor Motor Cycle bearing Registration No.KA-17-EJ-8454 and the Motor Cycle belonged to one Sri. Kiran Kumar, who is his common friend and Ishwar Pujari, the rider of the Motor Cycle, at around 8-25 p.m., on 13.09.2014, when his friend, viz., Ishwar Puraji was riding from Malleshwaram 1st Cross towards West Link Road Malleshwaram and the Respondent No.2, the driver of the Motor Vehicle (Car) bearing Registration No.KA- 04-ML-7279, who was driving from West Park Road towards the Junction, which connects West Link Road Malleshwaram and the Malleshwaram 1st Cross Road, i.e., North to South direction, drove in a rash and negligent manner without observing traffic rules and regulations in a high speed and dashed against to the Motor Cycle 3 M.V.C.NO.2170/2015 (SCCH-7) bearing Registration No.KA-17-EJ-8454, in which, he was the pillion rider. He immediately fell down and suffered multiple injuries to his backside, hands and legs, which are blood shredded also and the Motor Cycle, in which, he was a pillion rider, was also damaged due to the impact of the accident. The rider of the Motor Cycle was also sustained with minor injuries.
b) The Respondent No.1 is the Owner of the vehicle bearing Registration No.KA-04-ML-7279 and the Respondent No.2 is the driver of Motor Vehicle Car bearing Registration No.KA-04- ML-7279.
c) The Respondent No.2, after the accident did not stop the vehicle and just escaped from the scene. Upon taking assistance of the passerby and his friend, the driver of the Motor Cycle, he was taken to the Forties Hospital at Seshadripuram, Bengaluru. The Doctors at Forties Hospital after extended first- aid, advised him and suggested admission as an inpatient. He was examined by the duty Doctors and have admitted him as an inpatient, as such, he was treated as an inpatient from 13th September 2014 to 16th September 2014. The Doctors have taken X-rays and was found that, he was injured with compound and comminuted fracture on his left leg and he was subjected to undergo a surgery of IM interlocking nail, left tibia open reduction internal fixation - fibula done under SA and GA on 14.09.2014.
d) After he was discharged on 16.09.2014, he was advised to take complete bed rest for 6 months and also he was advised to attend the Hospital frequently for follow-up treatment. He is 4 M.V.C.NO.2170/2015 (SCCH-7) undergoing treatment frequently twice in every month as per the advice of the Doctors.
e) He is BBA (Bachelor of Business Administration) Graduate passed out in the year 2014 from Basaveshwara Commerce College, Bagalkot District and a thrown ball player. He has represented the Karnataka State Level Throw Ball in the year 2010-2011 and has placed runner-up at the State Level. Prior to the said accident, he used to play throw ball for various clubs in the state. Earlier to the accident, he was hale and healthy without any disabilities and he was working as a team leader at M/s. Courtesy Foundation, No.19, 6th Cross, Malleshwaram, Behind Lakshmi Gold Palace, Bengaluru - 03 and was earning Rupees 12,000/- to 14,000/- per month and along with incentives of Rupees 3,000/- to Rupees 4,000/- per month all together, he was earning a sum of Rupees 20,000/- per month. His nature of job was to travel to long distance, meeting clients and collect donations every day. After he met the accident, he rendered disabled to discharge aforesaid duties and further, he could not able to stand at least for more than ½ hour because he is suffering pain on his legs and if there is a journey about 10 to 20 kilometers above, he could not able to undertake same on his own and he should take the help of his father because of the injuries which, he has sustained loss of pay. According to the advice of the Doctors, the said injuries are said to be happens to be permanent disability so far as nature of occupation is concerned. After the said accident, he cannot play Throw Ball and has suffered mentally, due to which, he discontinues of sportsmanship and has lost his employment.
5 M.V.C.NO.2170/2015(SCCH-7)
f) He has spent Rupees 97,737/- in addition Rupees 2,758/- while he was an inpatient at Forties Hospital in Bengaluru. Even his follow-up treatment is concerned, he cannot have the journey in public vehicle and he is hiring the taxies from Bijapur to Bengaluru, for that, each time, he has to spend about more than Rupees 10,000/-, so far as the disabilities occurred, he cannot involve himself in his as earlier.
g) He has undergone treatment at M/s. Vaibhav Hospital, Mukund Nagar, near Madhuvan Hotel, Station Road, Bijapur - 04 and the treatment cost totals Rupees 14,661/- and as he is under regular treatment, he has lost source of income.
h) The jurisdictional Police have registered the case as against the driver in Crime No.68/2014 under Sections 134 (A & B) and 187 of Motor Vehicles Act and under Section 279 and 337 of IPC. It was Charge Sheeted and the Respondent No.2 have been convicted under Section 225(2) of Cr.P.C., for the offences committed under Sections 279, 337 and 338 of IPC and U/s 134(A &B) R/w Section 187 of IMV Act, vide Order dated 29.11.2014, passed by the Hon'ble III MMTC, at Bengaluru.
i) The Respondent No.2 is a Driver and the Respondent No.1 is the Owner of the vehicle involved in the accident. The Respondent No.3 is the Insurer of the Car driven by the Respondent No.2 and the Owner of the Respondent No.1. Hence, the Respondents are jointly and severally liable to pay the compensation to him.
j) He has not claimed compensation under Section 140 before any other Authority. Hence, this petition.
6 M.V.C.NO.2170/2015(SCCH-7)
3. In response to the notice, the Respondents No.1 and 2 have appeared before this Tribunal through their Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondents No.1 and 2 had not filed the written statement. Later, as per the Order dated 13.10.2015 passed on I.A.No.I, the written statement filed by the Respondents No.1 and 2 is taken on file.
4. In response to the notice, the Respondent No.3 has appeared before this Tribunal through its Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.3 had not filed the written statement. Later, as per the Order dated 11.01.2016 passed on I.A.No.II, the written statement filed by the Respondent No.3 is taken on file.
5. The Respondents No.1 and 2 inter-alia denying the entire case of the Petitioner, have further contended as follows;
a) The petition is not maintainable either in law or on facts.
b) The amount of Rupees 30,00,000/- claimed as compensation under Column 21 is baseless, speculative, imaginary and exorbitant besides being not due. They are not liable to pay any compensation.
c) The accident took place due to the negligence of the rider of the Motor Cycle and the Petitioner and not due to any negligence of the Respondent No.2.
7 M.V.C.NO.2170/2015(SCCH-7)
d) No permanent disability has been caused to the Petitioner and he can lead normal life and therefore, the petition filed by the Petitioner claiming compensation of Rupees 30,00,000/- is liable to be dismissed.
e) The Respondent No.1 vehicle has been insured with the Respondent No.3 and as on the date of accident, the Insurance Policy was in force. The Respondent No.2 had a valid driving licence to drive the Car in question. In that view of the matter, they are in no way liable to pay any compensation. In the event, any liability is to be fixed, it is only the Respondent No.3, which would be responsible to indemnify the Respondent No.1 and thereby satisfy the award, if any. Hence, prayed to dismiss the petition with costs.
6. The Respondent No.3 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition is not maintainable either under law or on facts and is liable to be rejected in limine. The claims of the Petitioner that, he suffered alleged accident because of the user/rash and negligent driving of the alleged Car bearing Registration No.KA-04-ML-7279 on the alleged day, time and place of the alleged accident, are far from truth.
b) It has issued the Policy in favour of the Respondent No.1, as against the said Car, covering the period of the alleged accident. However, the liability/obligation of it shall be strict subject to proof of compliance of Section 64VB of Insurance Act, the alleged cause of action, the terms and conditions and law governing thereto and also the other enactments corresponding to 8 M.V.C.NO.2170/2015 (SCCH-7) the incident and other aspects and matters involved in adjudicating the matter and finally ascertainment of the liability of them.
c) The situation of the alleged accident has been totally twisted and given wrong description of it by the Petitioner and the situation has been described as if the alleged Car is responsible for the alleged accident.
d) The policy of insurance against the said Car was issued subject to obligations on both sides and the extent of premium collected, the terms, conditions and limitations of the policy and the insured, i.e., the Respondent No.1 was obligated to satisfy and act in accordance with Sections 3, 5, 15 of M.V. Act, 1988 and Rule 3, of the Central Motor Vehicles Rules and also subject to the defences corresponding to Sections 147 and 149 of the said Act. There is no obligation on the part of it to indemnify the alleged liability of the insured, i.e., the Respondent No.1, under the said policy, unless the Petitioner proves alleged cause of action and the liability and obligation of it in accordance with the contract and terms and conditions of the policy.
e) It is 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.
9 M.V.C.NO.2170/2015(SCCH-7)
f) If the alleged cause of action were to be true, the Respondent No.1 would have acted as required under contract. His inaction proves that, there is no such accident caused by the said Car. Without prejudice to the said contentions, if the alleged accident is proved to be true, the insured, the Respondent No.1, has not reported the alleged accident or cause of action, both as required M.V. Act and as per contract, to it and has beached the terms and conditions of the policy and hence, there is no obligation of indemnification against it, in respect of the alleged liability and hence, the petition is liable to be dismissed against it on this ground also. The jurisdictional Police also have not acted as required under M.V. Act, if the alleged claims and allegations of the Petitioner are proved 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.
g) As both the rider of the Motor Cycle and the Owner of it since are friends of the Petitioner, he has made false allegations as against the driver of the Car, with ulterior motives. If this Hon'ble Tribunal finding that, there is contributory negligence of both the Car driver and specifically that, the alleged Car is involved in the alleged accident, its driver was rash and negligent in his driving, caused the accident, the accident occurred in the manner stated in petition, there was no negligence to any extent on the part of the rider of the Motor Cycle or his part, suffered injuries, permanent disability, has taken the alleged treatment, suffered loss of income, the alleged Police investigation has been done honestly and the contents of the Police documents are true or correct, etc., he is unable to travel in public transport and needs to travel in a Car, he has spent Rupees 14,661/- or any 10 M.V.C.NO.2170/2015 (SCCH-7) amount for purpose of treatment at Bijapur, the alleged Accused has been convicted and has paid fine. None of the claims, allegations and assertions, are admitted and the Petitioner is called upon to prove the same.
h) The Petitioner is called upon to state that, he has not filed any other petition/application before any other Court/Tribunal/Authority in respect of the same alleged accident and against them and the present petition is maintainable.
i) If the Petitioner establishes the alleged claims and contentions and the maintainability of the petition and need for spending money for any future medical expenses, no interest is needed to be granted on the same and to restrict the rate of interest on the compensation amount to 6% p.a., or to the lowest of Bank rates, in the interest of justice and equity. Hence, prayed to dismiss the petition.
7. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Car bearing Reg.No.KA-04-ML-7279 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
11 M.V.C.NO.2170/2015(SCCH-7)
8. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined four witnesses as P.W.2 to P.W.5 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.27. On the other hand, the Respondent No.3 has examined its Manager Legal as R.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.1. On the other hand, the Respondents No.1 and 2 have not adduced any evidence on their behalf.
9. Heard the arguments.
10. In support of the submission, the Learned Counsel appearing for the Respondent No.3 Sri. Y.P. Venkatapathi has placed reliance upon the decisions reported in,
i) ILR 2013 KAR 5097 (Bajaj Allianz General Insurance Co. Ltd., V/s. Ashok Raja Urs. K. and Another), wherein, it is observed that, MOTOR VEHICLES ACT, 1988- Accident claim-Judgment and Award-
Insurer's appeal challenging the liability as well as quantum of compensation-
Claimant's appeal seeking enhancement of compensation and questioning the finding of the Tribunal in Saddling contributory negligence on the part of the rider of Motor Cycle, on which the claimant was traveling-Practice of planting vehicles having valid insurance coverage in place of unknown vehicles causing the accident or vehicles not having insurance policy-calculated move on the part of the claimant and Police with the active connivance of Doctors to 12 M.V.C.NO.2170/2015 (SCCH-7) secure compensation-HELD, The documentary evidence on record clearly discloses that, this petition is also yet another fraudulent case in which there is a calculated move on the part of claimant and Police with the active connivance of Doctor in implicating the number of Honda Activa in place where the accident is caused by an unknown Car. Further, it is also seen that, the Doctor who has given evidence in this proceedings namely, Dr. Mali Manjunath, is not the Doctor who has treated the claimant-On earlier occasion, in appeals, Court has observed that, Dr. Mali Manjunath in fact supported such false and unscrupulous claim giving evidence in support of them though he is not a treated Doctor who has treated the claimant and as could be from the records, his name is not seen anywhere in documentary evidence available in the form of hospital records. Despite, he comes on record, makes a statement, oath, give evidence that, claimant has suffered injury in respect of which he has absolutely no knowledge and to help the claimant in securing higher compensation and yet another attempt on the part of Doctor in further and the fraud already committed by others in filing the claim petition.
ii) ILR 2010 KAR 2439 (Sri. Subash V/s. The New India Assurance Co. Ltd., and Others), wherein, it is observed that, 13 M.V.C.NO.2170/2015 (SCCH-7) MOTOR VEHICLES ACT, 1988- ACCIDENT CLAIM-Judgment and Award
- Inadequacy of compensation -
Appealed against by the claimant -
Insurance Company appealed against by the claimant - Insurance Company appeal seeking reduction in compensation - claimant continued in the services after the accident - award of compensation towards loss of future income by the Tribunal - legality of -
Held, the Tribunal has grossly erred in awarding compensation towards loss of future income, resulting in serious miscarriage of justice, when income, resulting in serious miscarriage of justice, when in fact, the claimant has been continued in the services of the corporation as 'conductor'. If the claimant is continued in service, then, the question of awarding compensation towards loss of future income does not arise. - Therefore, compensation awarded towards loss of future income is liable to be set aside - Judgment and Award is modified.
11. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 2,43,166/-
with interest at the rate of
9% p.a. (excluding future
14 M.V.C.NO.2170/2015
(SCCH-7)
medical expenses of
Rupees 20,000/-) from
the date of the petition till
the date of payment, from
the Respondent No.3.
Issue No.3 : As per the final Order,
for the following;
REASONS
12. ISSUE NO.1 :- The P.W.1, who is the Petitioner, has
stated in his examination-in-chief that, on 13.09.2014, he and his friend Sri. Eshwar Pujari had been on duty of his employer M/s. Courtesy Foundation, Malleshwaram and he and Eshwar Pujari were working in the same employer and after finishing work at Girinagar, he and Eshwar Pujar were traveling in the Motor Cycle bearing Registration No.KA-17-EJ-8454 and the owner of the Motor Cycle is in named Kiran Kumar, who is a common friend to rider Eshwar Pujari and Eshwar Pujar was the rider of the Motor Cycle and he was the pillion rider and on 13.09.2014 at 8.25 p.m., when the Motor Cycle in which they were traveling reached Malleshwaram 1st Cross and was ahead towards West Link Road Malleshwaram, the driver of the Car bearing Registration No.KA- 04-ML-7279, who was driving from West Park Road towards the Junction, which connects West Link Road, Malleshwaram and the Malleshwaram 1st Cross Road, i.e., North to South direction, drove in a very rash and negligent manner without observing traffic rules and regulations in a high speed and dashed against to the Motor Cycle and the Respondent No.2, who was a driver of the Car did not have a minimum courtesy to look as what happened and escaped from the scene. He has further stated that, due to the 15 M.V.C.NO.2170/2015 (SCCH-7) impact of the accident, he fell down off the Motor Cycle and he sustained injuries to his legs, hands and his head and the passersby and the residents of the area along with Eshwar Pujar assisted him and was taken to the nearest Hospital for medical treatment and the people gathered there helped them in taking a note of the registration number of the Car, i.e., KA-04-ML-7279 and the Motor Cycle in which, he was a pillion, was also damaged due to the impact of the accident and the rider Eshwar Pujari of the Motor Cycle was also sustained with minor injuries. He has further stated that, the rider of the Motor Cycle and the local residents immediately rushed him to the nearest forties Hospital, Seshadripuram and the duty Doctors in the Hospital extended first-aid and after the X-ray was taken of the left leg as it was injured badly and later, it was found that, the left leg was fractured with compound and comminuted fracture and he got discharged on 16.09.2014. He has further stated that, as there is no one to take Care in Bengaluru and he had to move to his native Bijapur to take follow-up treatment at Kundargi Hospital, Bijapur and Vaibhav Hospital, Bijapur. He has further stated that, the jurisdictional Malleshwaram Traffic Police have registered the case as against the driver, i.e., the Respondent No.2, in Crime No.68/2014 under Sections 134 (A & B) and 187 of Motor Vehiclea Act and under Sectiona 279 and 337 of IPC and it was Charge Sheeted and the Respondent No.2 have been convicted under Section 225(2) of Cr.P.C., for the offences committed under Section 279, 337 and 338 of IPC and U/s 134(A &B) R/w Section 187 of IMV Act, vide Order dated 29.11.2014, passed by the Hon'ble III MMTC, at Bengaluru.
16 M.V.C.NO.2170/2015(SCCH-7)
13. No doubt, the P.W.1 in his cross-examination has stated that, as per Ex.P.10 MVI Report, no damages caused to the offending Car and the front portion of the Motor Cycle caused damages. He has further stated that, at the time of shifting him to the Hospital, he was conscious and he does not know the contents of Ex.P.10 MVI Report. Further, Ex.P.5 Spot Hand Sketch disclosed that, there is head on collusion in between the said Motor Cycle bearing Registration No.KA17-EJ-8454 and the Car bearing Registration No.KA-04-ML-7279 and the accident was taken place on the ' T ' Junction place, i.e., middle of the road. Further, the R.W.1, who is a Manager Legal of the Respondent No.3 has stated in his examination-in-chief that, as per the Wound Certificate, the Petitioner claims that, he met with alleged accident because of the alleged rash and negligent driving of the Innova Car and he is a BBA graduate and working for some company and hence, if it is presumed as true, he knows the difference between the vehicles and their identity and hence, the first statement as stated before the Doctors is read, the subsequent claim and ascertain that, the Car bearing Registration No.KA-04-ML-7279, which is Volks Wagon, has caused the alleged accident is absolutely falsehood, as, it is not Innova of Toyota Company and on verification of both the numbers mentioned in the intimation to Police, issued by Forties Hospital, at its back side, it is mentioned that, the Car number will be either 7279 and hence, on verification of both the numbers, it is found that, the other number KA-01-ML-7479 is an Itios - Toyota Company Car, belonging to one Mr. Anil Kumar and thus, none of the two Cars are Innova Cars and hence, the Car of the Respondent No.1, which is Volks Wagon has been implicated and hence, the petition is not maintainable either under law or on facts and is liable to be 17 M.V.C.NO.2170/2015 (SCCH-7) dismissed in limine. He has further stated that, the alleged time of alleged accident varies to the contents in the petition and the Wound Certificate and as per Wound Certificate, the Petitioner was a rider and not a pillion rider and the facts are twisted and claimed that, he was going as a pillion rider and unless it were to be self accident, there was no need for the Petitioner to twist the facts and added to it, the Motor Cycle pertains to the friend of him and hence, if at all, he were to be a pillion rider, he would have proceeded as against the alleged Motor Cycle and hence, the insured Car is implicated and there appear to be active connivance of the Respondents No.1 and 2 as they have failed to effectively contest the matter. He has further stated that, to compare the damages as mentioned in IMV report and the sketch, which clearly indicate that, the claims of the Petitioner are false and hence, it can be presumed that, the Petitioner has suffered self accident and the insured Car bearing Registration No.KA-04- ML-7279 has been implicated and none of the allegations made against the insured Car and its driver are true and admitted and the petition is badly filed as against the unnecessary parties and hence, liable to be dismissed with exemplary costs. He has further stated that, without prejudice saving the rights, if compensation is granted, holding the Car driver also responsible for the alleged accident, it shall be assessed after assessing then of the Petitioner, who was riding and if proved that, the Motor Cycle had come in contact with the Car, for the above stated reasons and in accordance with the ratio of alleged contributory negligence of the driver of the said Car and the Petitioner, the compensation shall be reduced to the extent of the negligence of the Petitioner. He has further stated that, without prejudice to the said defence and also saving all the rights, if the allegations against the alleged Car and 18 M.V.C.NO.2170/2015 (SCCH-7) its driver are presumed as might be true, both the insured and the driver have not acted as per the contract and law and the jurisdictional Police also have not acted as required under M.V. Act, if the alleged claims of the Petitioner are presumed to be true and the Respondent No.1 has not complied with the both contractual and legal obligations. The Respondent No.3 has produced Ex.R.1 Police Intimation dated 13.09.2014.
14. But, based on the above said oral evidence, which has been stated from the mouth of P.W.1 by the Respondent No.3 during the course of cross-examination, the contents of Ex.P.10 MVI Report as well as the evidence of R.W.1, it cannot be said and come to the conclusion that, there is contributory negligence on the part of the rider of the Motor Cycle bearing Registration No.KA-17-EJ-8454 in riding it on the accidental spot and there was no negligence on the part of the driver of the offending Car bearing Registration No.KA-04-ML-7279 and the said Car never involved in the said road traffic accident and at the time of accident, the Petitioner was riding the said Motor Cycle and not he was proceeding on the Motor Cycle as a pillion rider, as, to corroborate his case as well as oral version, the Petitioner has produced Ex.P.1 Order Sheet relating to C.C.No.2520/2014, Ex.P.2 Charge Sheet, Ex.P.3 Complaint, Ex.P.4 FIR, Ex.P.5 Spot Hand Sketch, Ex.P.6 Spot Panchanama, Ex.P.7 Notice under Section 133 of M.V. Act, Ex.P.8 Reply to Notice under Section 133 of M.V. Act, Ex.P.9 Wound Certificate, Ex.P.10 MVI Report, Ex.P.11 Indemnity Bond, Ex.P.12 Judgment dated 29.11.2014 passed in C.C.No.2520/2013, Ex.P.14 Discharge Summary and Ex.P.17 Discharge Card and also produced Ex.P.20 Driving Licence relating to the Eshwara Poojari and also produced Ex.P.22 19 M.V.C.NO.2170/2015 (SCCH-7) Inpatient Records relating to him in respect of the treatment taken by him at M/s. Lalitha Health Care Pvt. Ltd., Bangalore, through P.W.3, who is a Record Custodian of the said Hospital and has also produced Ex.P.27 Summary of Treatment through P.W.5, who is a Medico Legal Consultant and Resident Medical Officer at Forties Hospital, which clearly disclosed that, at the time of accident, the Petitioner was a pillion rider and the P.W.2 is a rider of the Motor Cycle bearing Registration No.KA-17-EJ-8454 and the P.W.2, namely, Eshwar Poojari was a rider of the said Motor Cycle at the time of accident and when they were proceeding on the accidental spot, the driver of the offending Car bearing Registration No.KA-04-ML-7279 came with very high speed, rash and negligent manner from left side towards right side in the junction place and dashed to the said Motor Cycle and if the driver of the offending Car could have taken a little care while driving it at the time of accident, he could have avoided the said road traffic accident, which caused to the Motor Cycle, wherein, the Petitioner was proceeding as a pillion rider and in the said road traffic accident, the Petitioner had sustained one grievous injury and one simple injury and initially, he had taken treatment at Forties Hospital by admitting as an inpatient from 13.09.2014 to 16.09.2014, i.e., for 4 days and thereafter, by admitting as an inpatient, he took treatment to the said accidental injuries at Vaibhav Hospital, Bijapur from 20.09.2014 to 16.09.2014, i.e., for 5 days, totally for 9 days, he took treatment to the said accidental injuries in the said Hospitals and the entire negligence is on the part of the driver of the offending Car bearing Registration No.KA- 04-ML-7279 and there was no negligence on the part of the P.W.2 in riding the Motor Cycle bearing Registration No.KA-17-EJ-8454 at the time of accident, which is clear from the following 20 M.V.C.NO.2170/2015 (SCCH-7) discussion. Further more, the P.W.1 in his cross-examination has clearly stated that, the Police have taken his statement and the public have shifted him to the Forties Hospital and he was admitted as an inpatient for 3 days and Dr. Anand Chowan treated him and after discharge from the Hospital, he went to his native place Bijapur and he was admitted as an inpatient at Vaibhav Hospital, Bijapur for 5 days. Further, the P.W.1 has clearly denied the suggestions put to him by the Respondents during the course of cross-examination that, at the time of accident, they were 3 persons, namely, he, Kiran Kumar and Eshwar, were proceeding on the said Motor Cycle and as per Ex.P.9 Wound Certificate and Ex.P.4 Discharge Summary, he was riding the said Motor Cycle at the time of accident and since he was not having a valid Driving Licence to ride the Motor Cycle at the time of accident, he is falsely stating that, he was a pillion rider at the time of accident and he himself dashed the said Motor Cycle to the Car bearing Registration No.KA-04-ML-7279 and at the time of accident, he was riding the Motor Cycle with very high speed and suddenly applied the break and due to which, he fell down and sustained injuries and then a false complaint is lodged as against the driver of the offending Car in collusion with the Police, even though no alleged accident was taken place and the alleged accident was taken place due to negligence on the part of the rider of the Bike and the offending Car not dashed to the two wheeler and only to claim more compensation, he is giving false evidence. From this, it appears that, though the P.W.1 has been cross-examined by the Respondents, nothing has been elicited from his mouth to consider their specific defence, which has been contended by them in their Written Statement. Further, the Respondents No.1 and 2, who are the R.C. Owner and the Driver 21 M.V.C.NO.2170/2015 (SCCH-7) of the offending Car bearing Registration No.KA-04-ML-7279, respectively, have not adduced any evidence on their behalf to consider their specific defence. Further, the R.W.1 in his cross- examination has stated that, he has no knowledge that, in the criminal case, the driver of the offending vehicle is convicted and he does not know that, the owner of the offending vehicle has released it from the custody of the Police by executing Indemnity Bond. From this, it appears that, the Respondent No.3 has no knowledge about the subsequent events of the accident in question. Further, if there was no negligence on the part of the driver of the offending Car in the commission of the said road traffic accident and the entire negligence is on the part of the rider of the Motor Cycle bearing Registration No.KA-17-EJ-8454, wherein, the Petitioner was proceeding as a pillion rider, the driver of the offending Car could have definitely lodged a complaint as against the rider of the Motor Cycle immediately after the accident and he could not have pleaded guilty in the criminal case relating to the accident in question as shown in Ex.P.1 Order Sheet relating to the C.C.No.2520/2014, i.e., in respect of the accident in question, which caused to the Petitioner. The very admission of the driver of the offending Car in respect of the allegations made as against him in the said criminal case as per Ex.P.1 Order Sheet relating to the C.C.No.2520/2014 clearly implies that, the entire negligence is on the part of the driver of the offending Car bearing Registration No.KA-04-ML-7279, i.e., the Respondent No.2, in the commission of the said road traffic accident and there was no negligence on the part of the rider of the Motor Cycle bearing Registration No.KA-17-EJ-8454, wherein, the Petitioner was proceeding as a pillion rider. Further, by producing Ex.P.20 Driving Licence relating to the rider of the said Motor Cycle, i.e., 22 M.V.C.NO.2170/2015 (SCCH-7) P.W.2, the Petitioner has clearly proved that, at the time of accident, the rider of the said Motor Cycle was having a valid and effective driving licence to ride such class of Motor Cycle. Further, the P.W.2, who is a rider of the said Motor Cycle, has clearly stated the same evidence of P.W.1, which has been stated by him in his examination-in-chief, which clearly corroborated with the contents of the above referred Police and medical documents. Further, the P.W.2 in his cross-examination has clearly stated that, at the time of accident, the Motor Cycle bearing Registration No.KA-17-EJ-8454 was owned by Kiran and the said Motor Cycle is a Bajaj Pulser and at the time of accident, the speed of the said Motor Cycle was 30-40 kmph and in the alleged accident, he had only sustained simple injuries and after the accident, he was accompanied with the Petitioner, when he was shifted to Forties Hospital and the Petitioner had informed the same to the Hospital Authority and he does not know the contents of the medical documents, wherein, it is mentioned that, at the time of accident, the Petitioner was riding the Motor Cycle and next day of the accident, he had given statement to the Police. From the said evidence of P.W.2, it is further clearly proved that, at the time of accident, the P.W.2 was riding the Motor Cycle bearing Registration No.KA-17-EJ-8454 and the Petitioner was proceeding on the said Motor Cycle as a pillion rider and there was no negligence on the part of the P.W.2 in riding the said Motor Cycle, but, the entire negligence is on the part of the driver of the offending Car bearing Registration No.KA-04-ML-7279. Further, the P.W.2 has also clearly denied the suggestions put to him by the Respondents during the course of cross-examination that, at the time of accident, after completion of their duty, he, Petitioner and the said Kiran were together proceeding on the said Motor 23 M.V.C.NO.2170/2015 (SCCH-7) Cycle and the said Motor Cycle was proceeding with a speed of 90 kmph and at the time of accident, the Car was taking turn and at that time, by seeing the said Car, he had suddenly applied the break and fell down as it was very high speed and in collusion with the Police, they have filed a false complaint as against the driver of the said Car and at the time of accident, he was not having a valid D.L. to ride the said Motor Cycle and if the Motor Cycle dashed to the said Car, he had also sustained grievous injuries as he was riding the Motor Cycle with very high speed and he had informed to the Hospital Authority about how the accident caused and at the time of accident, the Petitioner was riding the Motor Cycle and he falsely stating that, he was riding the Motor Cycle and he no way relating to the alleged accident and only to help the Petitioner, he is giving false evidence and he was riding the said Motor Cycle with very high speed, rash and negligent manner and dashed to the said Car. From this, it further appears that, though the P.W.2 has been cross-examined by the Respondents, nothing has been elicited from his mouth to consider their specific defence.
15. The contents of Ex.P.3 Complaint and Ex.P.4 FIR disclosed that, the rider of the Motor Cycle, wherein, the Petitioner was proceeding as a pillion rider as well as the eye witness of the accident in question, i.e., the P.W.2, has lodged Ex.P.3 Complaint before the Malleshwaram Traffic Police as against the driver of the offending Car bearing Registration No.KA-04-ML-7279 by alleging that, on 13.09.2014 at 8-25 p.m., when he was riding the Motor Cycle bearing Registration No.KA-17-EJ-8454 along with his friend as a pillion rider, i.e., the Petitioner, near Malleshwaram West Link Road, BSNL Office Link Road, near front of BSNL Office, 24 M.V.C.NO.2170/2015 (SCCH-7) the Car bearing Registration No.KA-04-ML-7279 came with very high speed, rash and negligent manner by its driver and dashed to their Motor Cycle and due to the said impact, he and the Petitioner fell down along with the Motor Cycle and the Petitioner had sustained injuries on his left leg and with the help of the public, he had shifted the Petitioner to nearby Forties Hospital to take treatment to the said accidental injuries and the driver of the offending Car fled away from the accidental spot along with the Car and hence, he prayed to take necessary legal action as against the driver of the offending Car and based on the said Ex.P.3 Complaint, the said Police have registered a criminal case as against the driver of the offending Car for the offences punishable under Sections 279 and 337 of IPC and Section 134(A & B) and Section 187 of IMV Act. It is also clear from the contents of Ex.P.3 Complaint and Ex.P.4 FIR that, there is no delay as such in lodging the complaint by the eye witness of the accident in question, in respect of the accident caused to him as well as the Petitioner.
16. The contents of Ex.P.5 Spot Hand Sketch, Ex.P.6 Spot Panchanama, Ex.P.7 Notice under Section 133 of M.V. Act, Ex.P.8 Reply to Notice under Section 133 of M.V. Act, Ex.P.10 MVI Report and Ex.P.11 Indemnity Bond further clearly disclosed that, there was no negligence on the part of the P.W.2 in riding the Motor Cycle bearing Registration No.KA-17-EJ-8454 in the commission of the said road traffic accident, wherein, the Petitioner was proceeding as a pillion rider, but, the entire negligence is on the part of the driver of the offending Car bearing Registration No.KA- 04-ML-7279, i.e., the Respondent No.2 and if the driver of the offending Car, i.e., the Respondent No.2, could have taken a little 25 M.V.C.NO.2170/2015 (SCCH-7) care while driving it in the junction place by observing the moving of the said Motor Cycle, he could have avoided the said road traffic accident, which caused to the Petitioner and the offending Car bearing Registration No.KA-04-ML-7279 as well as its driver, i.e., the Respondent No.2, are very much involved in the said road traffic accident and at the time of accident, the Respondent No.2 was driving the said offending Car and the Respondent No.1 was a R.C. Owner of the said offending Car. The damages caused to the said Motor Cycle and the offending Car are clearly mentioned in Ex.P.10 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.10 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicles.
17. The contents of Ex.P.9 Wound Certificate clearly disclosed that, with a alleged history of road traffic accident, the Petitioner was brought to Forties Hospital on 13.09.2014 itself and on examination, it is found that, he had sustained the injuries, i.e., compound and comminuted fracture of both bones of left leg and multiple abrasion over right elbow, left knee and right knee, i.e., one simple injury and one grievous injury and by admitting as an inpatient from 13.09.2014 to 16.09.2014, i.e., for 4 days, he took treatment to the said accidental injuries in the said Hosptial.
18. The contents of Ex.P.14 Discharge Summary and Ex.P.22 Inpatient Records further clearly disclosed that, with alleged history of road traffic accident, the Petitioner was brought to Forties Hospital on 13.09.2014 itself and on examination, it is finally diagnosed compound and comminuted fracture distal tibia and fibula and by admitting as an inpatient from 13.09.2014 to 26 M.V.C.NO.2170/2015 (SCCH-7) 16.09.2014, i.e., for 4 days, he took treatment to the said accidental injuries in the said Hospital.
19. The contents of Ex.P.17 Discharge Card further clearly disclosed that, the Petitioner had also taken treatment at Vaibhav Hospital, Bijapur, by admitting as an inpatient from 20.09.2014 to 24.09.2014, i.e., for 5 days and during the course of treatment, it is finally diagnosed operated of cause of pen type II fracture tibia/fibula.
20. The P.W.5, who is a Medico Legal Consultant and Resident Medical Officer of Forties Hospital has stated in his examination-in-chief that, he had been in the team of Doctors, who treated the Petitioner, who was admitted in their Hospital with a history of road traffic accident on 19.03.2014 at 9-45 p.m., and he was treated from 13.09.2014 to 16.09.2014 and finally diagnosed compound and comminuted fracture distal tibia and fibula - Left leg.
21. From the said medical evidence, it is clearly proved that, in the said road traffic accident, the Petitioner had sustained compound and comminuted fracture of both bones of left leg and multiple abrasion over right elbow, left knee and right knee, i.e., one grievous injury and one simple injury and initially, by admitting as an inpatient from 13.09.2014 to 16.09.2014, i.e., for 4 days, he took treatment to the said accidental injuries at Forties Hospital and during the course of treatment, it is finally diagnosed compound and comminuted fracture distal tibia and fibula and later, he was admitted at Vaibhav Hospital, Bijapur, on 20.09.2014 and during the course of treatment, it is finally 27 M.V.C.NO.2170/2015 (SCCH-7) diagnosed operated of cause of pen type II fracture tibia/fibula and he took treatment to the said accidental injuries till 24.09.2014, i.e., for 5 days, totally for 9 days.
22. The contents of Ex.P.2 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to very high speed, rash and negligent manner of driving of the offending Car bearing Registration No.KA-04-ML-7279 by its driver, i.e., the Respondent No.2, the road traffic accident was taken place on 13.09.2014 at about 8.25 P.M. at Malleshwaram 1st Cross West Link Road Junction, which dashed to the Motor Cycle bearing Registration No.KA-17-EJ-8454, wherein, the Petitioner was proceeding as a pillion rider and due to the said impact, the rider and the pillion rider fell down on the accidental road and the Motor Cycle caused damages and the Petitioner had sustained two simple injuries and one grievous injury and after the accident, the driver of the offending Car did not give treatment to the Petitioner to the said accidental injuries and he has not shifted the Petitioner for treatment to the Hospital and not informed to the nearest Police Station about the accident and fled away from the accidental spot and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the Respondent No.2, who was a driver of the offending Car, for the offences punishable under Sections 279 and 337 of IPC and Sections 187 and 134(A & B) of IMV Act. There is no allegation leveled by the Investigating Officer in Ex.P.2 Charge Sheet as against the P.W.2 about his negligence in the commission of the said road traffic accident, while he was riding the said Motor Cycle bearing Registration No.KA-17-EJ-8454.
28 M.V.C.NO.2170/2015(SCCH-7)
23. The contents of Ex.P.1 Order Sheet relating to C.C.No.2520/2014 and Ex.P.12 Judgment dated 29.11.2014 passed in C.C.No.2520/2013 clearly disclosed that, the Respondent No.2, who was an Accused in the said criminal case, relating to the accident in question, is convicted for the offence punishable under Sections 279, 337 and 338 of IPC and Section 134(A & B) of M.V. Act, on merits, by considering the evidence adduced by both the parties. The same has not been disputed by the Respondents No.1 and 2 in the present petition. From this, it is further made crystal clear that, the entire negligence is on the part of the Respondent No.2 in driving the offending Car bearing Registration No.KA-04-ML-7279.
24. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the Respondent No.2 in driving the offending Car bearing Registration No.KA-04-ML-7279 in the commission of the said road traffic accident and there was no negligence on the part P.W.2 in riding the Motor Cycle bearing Registration No.KA-17-EJ- 8454 and the offending Car bearing Registration No.KA-04-ML- 7279 as well as its driver, i.e., the Respondent No.2, are very much involved in the said road traffic accident, wherein, the Petitioner, who was a pillion rider of the said Motor Cycle had sustained one grievous injury and one simple injury. Accordingly, I answered Issue No.1 in the Affirmative.
25. ISSUE NO.2 :- The Petitioner has not produced any authenticated documents to consider his actual age at the time of accident. But, the P.W.1, who is the Petitioner, in his cross- examination has stated that, his date of birth is on 19.03.1992.
29 M.V.C.NO.2170/2015(SCCH-7) The date of accident is on 13.09.2014. On perusal of the said dates, it appears that, at the time of accident, the Petitioner was 23 years old. Hence, the age of the Petitioner is considered as 23 years at the time of accident.
26. The P.W.1 has stated that, he is a BBA (Bachelor of Business Administration) Graduate passed out in the year 2014 from Basaveshwara Commerce College, Bagalkot District and a Throw Ball Player and he has represented the Karnataka State Level Throw Ball in the year 2010-2011 and has placed Runner- up at the State Level and prior to the said accident, he used to play Throw Ball for various clubs, i.e., Lion Clubs, Bagalkote and could be paid a an amount as honorary and earlier to the accident, he was hale and healthy without any disabilities. He has further stated that, he was working as a Team Leader at M/s. Courtesy Foundation, No.19, 6th Cross, Malleshwaram, Behind Lakshmi Gold Palace, Bengaluru - 03 and was earning Rupees 12,000/- to 14,000/- per month and along with incentives of Rupees 3,000/- to Rupees 4,000/- per month and the salary paid to him was based on commission basis and a total sum of Rupees 20,000/- per month was his earnings and the nature of job was to travel to long distance, meeting clients and doners, collecting donations every day and he was paid commission in percentage based on the amount collected. The Petitioner has produced Ex.P.13 Reliving Letter dated 10.04.2015 issued by Courtesy Foundation, which disclosed that, the Petitioner was appointed and designated as a Team Leader to the Courtesy Foundation on 14th October 2013 and he has worked in the said Foundation till September 2014 and he was paid a monthly salary and incentive of Rupees 20,000/- per month. Further, the Petitioner has 30 M.V.C.NO.2170/2015 (SCCH-7) examined the Manager of M/s. Courtesy Foundation as P.W.4, who has stated in his examination-in-chief that, he knows the Petitioner for more than 3 years and he was working in his employer's establishment M/s. Courtesy Foundation and the Petitioner has worked from 4th October 2013 to 13.09.2014 and was designated as a Team Leader and the nature of his work involved traveling to the doners place explained about their establishment, services, achievements and also to collect the donations from doners and he was paid honorary remuneration on every day basis based upon his efforts and the Petitioner would get Rupees 15,000/- to Rupees 20,000/- per month and sometimes less than stated above. He has further stated that, the Petitioner left the job after he met with an accident on 13.09.2014 and he personally knows that, the Petitioner was hale, healthy and energetic, while he was working with their establishment and on 10.04.2015, he has issued reliving letter to the Petitioner. He has further stated in his cross-examination that, 25 persons are working in their Foundation and they have not issued any appointment letter, salary particulars to the Petitioner and they have not been maintaining attendance register. He has further stated that, to show that, the Petitioner was working in their foundation at the time of accident, they have issued salary particulars letter to the Petitioner and by way of cash, they have paid the salary to the Petitioner and no register is maintained in their Foundation in respect of payment of salary to their workers and they have maintained savings book and the Office hours of their Foundation is 9-30 a.m., to 7-30 p.m., and they have not issued salary slips to the Petitioner. From the said evidence of P.W.1 and P.W.4, it appears that, except Ex.P.13, the Petitioner has not produced any authenticated documents issued by his 31 M.V.C.NO.2170/2015 (SCCH-7) employer to show his avocation and income at the time of accident. It is very much clear from the contents of Ex.P.13 Reliving Letter that, at the time of accident, the Petitioner was working as a Team Leader at M/s. Courtesy Foundation. But, the income of the Petitioner, which has been stated by him in his examination-in-chief cannot be taken into for consideration, as, there is discrepancy in stating the actual salary received by the Petitioner from his employer at the time of accident. From the said evidence of P.W.1, it appears that, at the time of accident, the Petitioner was drawing salary more than Rupees 20,000/-. Hence, the said income as stated by the P.W.1 at the time of accident cannot be taken into for consideration. Further, the Petitioner has not produced his Bank Statement or Bank Pass Book. Even, the Petitioner has not produced his educational certificates. Hence, the said amount stated by the P.W.1 in respect of the consideration of his income at the time of accident cannot be believed and accept. However, at the time of accident, the Petitioner was 23 years old, which disclosed about his family status along with his parents and by considering the same, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 9,000/- p.m. Hence, the notional income of the Petitioner is considered as Rupees 9,000/- per month at the time of accident.
27. The P.W.1 has stated that, the Doctors were suggested to undergo surgery of IM interlocking nail, left tibia open reduction internal fixation - fibula done under SA and GA and the surgery was done on 14.09.2014. He has further stated that, after he got discharged on 16.09.2014 from Forties Hospital and he was advised to take complete bed rest for 6 months and also the 32 M.V.C.NO.2170/2015 (SCCH-7) Doctors advised him to not walk for 90 days and also advised to attend the Hospital frequently for follow-up treatment and as there is no one to take care in Bengaluru, he had to move to his native Bijapur and it was difficult to travel all the time to Bengaluru to undergo treatment once or twice in every month as per the advice of the Doctors and he found it very difficult to travel from Bijapur to Bengaluru, so he had taken follow-up treatment at his native Bijapur in Kundargi Hospital, Bijapur and Vaibhav Hospital, Bijapur and the surgery stitches were removed after 45 days of the surgery at Vaibhav Hospital, Bijapur. The P.W.5 has stated that, on 14.09.2014, under spinal and general anesthesia, open reduction and internal fixation with IM interlocking nailing of left tibia and plate fixation for fracture fibula. The P.W.1 in his cross- examination has stated that, he was visited the Hospital at Bengaluru after one week from the date of discharge and he was admitted as an inpatient at Vaibhav Hospital, Bijapur, for 5 days and he was not underwent any operation in the said Hospital. By considering the contents of Ex.P.9 Wound Certificate, Ex.P.14 Discharge Summary, Ex.P.17 Discharge Card and Ex.P.22 Inpatient Records, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained compound and comminuted fracture of both bones of left leg and multiple abrasion over right elbow, left knee and right knee, i.e., one grievous injury and one simple injury and initially, he took treatment to the said accidental injuries at Forties Hospital by admitting as an inpatient from 13.09.2014 to 16.09.2014, i.e., for 4 days, and during the course of treatment, it is finally diagnosed compound and comminuted fracture distal tibia and fibula and after discharge from the Hospital, again the Petitioner was admitted in Vaibhav Hospital, Bijapur, on 33 M.V.C.NO.2170/2015 (SCCH-7) 20.09.2014 till 24.09.2014, i.e., for 5 days and he took treatment to the said accidental injuries in the said Hospital and during the course of treatment, it is finally diagnosed operated of cause of pen type II fracture tibia/fibula. The Petitioner has also produced Ex.P.16 OPD Card. Further, it is clearly mentioned in Ex.P.14 Discharge Summary that, during the course of treatment IM interlocking nail, left tibia open reduction internal fixation, fibula done under SA and GA on 14.09.2014 and at the time of discharge, the Petitioner was advised to take non-weight bearing ambulation with walker, active ankle and knee movement and limb elevation along with medication. From the said medical evidence, it is clearly proved that, in the said road traffic accident, the Petitioner had sustained compound and comminuted fracture of both bones of left leg and multiple abrasion over right elbow, left knee and right knee and during the course of treatment, implants are inserted to the fracture site of the Petitioner. Hence, the Petitioner was very much required the regular follow-up treatment to the said accidental injuries as per the advice of the treated Doctors. Based on these medical evidence, the nature of injuries sustained by the Petitioner in the said road traffic accident, the line of treatment taken by the Petitioner to the said accidental injuries in both the Hospitals, length of treatment and regular follow-up treatment taken by the Petitioner to the said accidental injuries as per the advise of the treated Doctors, can very well be believed and accept.
28. The P.W.1 has stated that, after the accident, he is disabled to discharge the said duties and further, he is not able to stand at least for more than ½ hour because of pain in his left leg and he could not able to work for more than 6 months as there 34 M.V.C.NO.2170/2015 (SCCH-7) was lot of pain in his left leg and unable to walk and could not work and as such, loss of pay and according to the advice of the Doctors, the said injuries are said to be happens to be permanent disability so far as nature of occupation is concerned and after the said accident, he cannot play Thrown Ball and have suffered mentally due to discontinue of sportsmanship and have lost his employment. He has further stated that, he is working in M/s. Bharathi Airtel (4G) as Store Keeper and earning a monthly salary of Rupees 12,000/- as per his past experience is concerned, he would get a better job profile if he works as Field Executive and expected a salary of more than Rupees 20,000/- per month and due to the disability caused on the impact of the accident dated 13.09.2014, he is unable to take up jobs other than sitting and working with a lesser salary and as such, the said accident has caused permanent disability to his left leg and cannot take up job taking into account of his age and experience.
29. The P.W.5, who is one of the team of the Doctors, has stated in his examination-in-chief that, recently, he examined the Petitioner on 22.08.2016 exclusively for disability assessment and on clinical examination, he found the disabilities. By considering the range of movements in respect of hip joint, knee joint and ankle joint of left lower limb, loss of strength around ankle joint and knee joint, mobility component, i.e., pain interfering with middle with function and based on the radiological findings Guidelines and Gazette Notification, the P.W.5 has opined that, the Petitioner is suffering from permanent physical disability of 13.6% of total body, i.e., 1/3rd of 41%. He has further stated that, united fracture of left tibia and fibula with implants in situ, which revealed from radiological examination. The P.W.5 has produced 35 M.V.C.NO.2170/2015 (SCCH-7) Ex.P.24 Outpatient Book, Ex.P.25 X-ray Film and Ex.P.27 Summary of Treatment.
30. But, based on the said oral evidence of P.W.1 and P.W.5 coupled with the contents of the above referred all the 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 13.6% to the whole body, as, the P.W.5 is not an Orthopedic Surgeon and the same has been clearly admitted by the P.W.5 in his cross- examination and neither the Petitioner nor P.W.5 produced the disability certificate. Further, the Petitioner has not produced the disability certificate issued either by the treated Doctor or any competent Doctor. Further, the P.W.5 in his cross-examination has clearly stated that, now the fracture is united. He has further clearly stated that, the Orthopedic Surgeon can assess the disability. Further, the P.W.5 has not assessed the permanent physical and functional disability of the Petitioner by considering his nature of work and age. Further, the Petitioner in his examination-in-chief itself has clearly stated that, presently, he is working in M/s. Bharathi Airtel (4G) as Store Keeper and earning a monthly salary of Rupees 12,000/- as past experience is concerned. From this, it appears that, the said accidental injuries no way affect to the Petitioner to do the earning work. Further, though it is specifically stated by the Petitioner that, as per the his past experience is concerned, he would get a better job profile if he works as a Field Executive and expected a salary of more than Rupees 20,000/- p.m., to consider the same, no scrap of paper has been produced by him. Further, the P.W.1 in his cross- examination has stated that, now he is doing work in another 36 M.V.C.NO.2170/2015 (SCCH-7) company and receiving salary of Rupees 12,000/- per month and now, the injuries are recovered. Further, while discussing above, this Tribunal has already observed and come to the conclusion that, the Petitioner has utterly failed to prove that, at the time of accident, he was getting income of Rupees 20,000/- p.m., and as such, the notional income of the Petitioner is considered as Rupees 9,000/- p.m. By considering the same, the salary of Rupees 12,000/- per month now the Petitioner is getting is more than the said notional income. Therefore, it can be safely held that, the said accidental injuries no way affect to the Petitioner to do the work and day today activities. Therefore, the extent of 13.6% permanent physical and functional disability as stated by the P.W.5 cannot be believed and accept.
31. However, in the said road traffic accident, the Petitioner had sustained one grievous injury and one simple injury and by admitting as an inpatient totally for 9 days, he took treatment to the said accidental injuries at Forties Hospital and Vaibhav Hospital, Bijapur and still, the Petitioner is having implants in situ and at the time of accident, the Petitioner was 23 years old, by considering these material factors, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 9% to the whole body, which is believable and acceptable one.
32. No doubt, this Tribunal has already observed and come to the conclusion that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 9% to the whole body. But, based on the same, the Petitioner is not entitled for compensation towards loss of future 37 M.V.C.NO.2170/2015 (SCCH-7) income, which is arising out of the said disability, which caused due to the said accidental injuries, as, it is very much clear from the evidence of P.W.1 that, even after the accident, by leaving the earlier job, now he is working in M/s. Bharathi (4G) as a Store Keeper and earning a monthly salary of Rupees 12,000/-. Further, the said salary of Rupees 12,000/- per month, which is earning by the Petitioner at present is more that the salary, which was earning by the Petitioner at the time of accident, i.e., the notional income of Rupees 9,000/- per month. From this, it is made crystal clear that, after the accident, the Petitioner had living the earlier job, joined another Company and getting the monthly salary of Rupees 12,000/-. Hence, the Petitioner is not entitled for compensation towards loss of future income arising out of the said permanent physical and functional disability of 9% to the whole body, which caused due to the said accidental injuries.
33. However, in the said road traffic accident, the Petitioner had sustained one grievous injury and one simple injury and by admitting as an inpatient totally for 9 days, he took treatment to the said accidental injuries at Forties Hospital and Vaibhav Hospital, Bijapur and at the time of accident, the Petitioner was 23 years old and still the Petitioner is having implants in situ, by considering these material factors, the Petitioner is entitled for compensation under the following heads.
34. As per Ex.P.9 Wound Certificate and evidence of P.W.1 and P.W.5, the Petitioner had sustained one grievous injury and one simple injury. The Petitioner was in the Hospital as an inpatient from 13.09.2014 to 16.09.2014, i.e., for 4 days and from 20.09.2014 to 24.09.2014, i.e., for 5 days, totally for 9 days. Due 38 M.V.C.NO.2170/2015 (SCCH-7) to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 50,000/- towards pain and suffering.
35. As it is already observed that, the age of the Petitioner was 23 years. He has to lead remaining his entire life with 9% 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.
36. The Petitioner had sustained one grievous injury and one simple injury and he was in the Hospital as an inpatient for 9 days and he could not do any work at least for 3 months and thereby, he deprived the income. Therefore, at the rate of Rupees 9,000/- per month, a sum of Rupees 27,000/- is awarded towards loss of income during the laid up period.
37. The P.W.1 has stated that, he has spend more than Rupees 93,737/- while he was admitted in Forties Hospital and in addition, he has spent Rupees 2,758/- for the follow-up treatment, he had to spend Rupees 10,000/- for hiring a taxi to Bengaluru as and when to consult the treated Doctor at Bengaluru Forties Hospital and he had been prescribed with medicines till August 2015 and Rupees 1,800/-would be incurred every month for medicines. He has further stated that, he has undergone treatment at Vaibhav Hospital Bijapur and the treatments cost incurred totaling Rupees 14,661/-. In this regard, the Petitioner has only produced Ex.P.15 Medical Bills 19 in 39 M.V.C.NO.2170/2015 (SCCH-7) numbers, which is amounting of Rupees 1,15,166/- and Ex.P.18 Medical Prescriptions 6 in numbers. The P.W.1 in his cross- examination has clearly stated that, he has not produced the Taxi Bills. He has further admitted that, in last 3 pages of Serial No.1 of Ex.P.15 Inpatient Bill, the print date is mentioned as 01.01.2015. From this, it appears that, there is discrepancy in mentioning the said date. But, it no way affects to consider the amount covered under the said bill, as, it is an original bill and it has to be taken into for consideration. The Petitioner has taken treatment at Forties Hospital, wherein, he was taken treatment as an inpatient from 13.09.2014 to 16.09.2014, i.e., for 4 days and from 20.09.2014 to 24.09.2014, i.e., for 5 days, totally for 9 days. Considering the nature of the injuries and line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 1,15,166/- to the Petitioner.
38. The P.W.1 and P.W.5 have not stated anything about future medical assistance and its expenses, which required to the Petitioner to the accidental injuries. But, it is clearly mentioned in Ex.P.14 Discharge Summary and Ex.P.27 Summary of Treatment about IM interlocking nail, left tibia open reduction internal fixation fibula done under SA and GA on 14.09.2014, which disclosed about the insertion of implants in situ. The said implants have to be removed and therefore, the Petitioner requires the amount for future medical expenses. The Petitioner has not produced the estimation for removal of implants. However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 20,000/- to the Petitioner.
40 M.V.C.NO.2170/2015(SCCH-7)
39. As the Petitioner was taken treatment as an inpatient for 9 days, it is necessary to award a sum of Rupees 3,000/- towards conveyance charges, Rupees 3,000/- towards attendant charges and Rupees 5,000/- towards food, nourishment and diet charges etc.,
40. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and sufferings Rs. 50,000-00
2. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
3. Rs. 27,000-00 up period
4. Actual medical expenses Rs. 1,15,166-00
5. Future medical expenses Rs. 20,000-00
6. Conveyance Rs. 3,000-00
7. Attendant Charges Rs. 3,000-00 Food, Nourishment &
8. Rs. 5,000-00 Diet charges TOTAL Rs. 2,43,166-00
41. In all, the Petitioner is entitled for total compensation of Rupees 2,43,166/- along with interest at the rate of 9% per annum on the above said sum (excluding future medical expenses of Rupees 20,000/-) from the date of petition till payment.
42. The P.W.1 has stated that, the Respondent No.2 is a Driver and the Respondent No.1 is the Owner of the vehicle involved in the accident and the Respondent No.3 is the Insurer of the Car driven by the Respondent No.2 and the Owner of the Respondent No.1 and hence, the Respondents are jointly and 41 M.V.C.NO.2170/2015 (SCCH-7) severally liable to pay the compensation to him for the negligent act of the Respondent No.2.
43. While answering Issue No.1, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the Respondent No.2 in driving the offending Car bearing Registration No.KA-04-ML-7279 in the commission of the said road traffic accident and there was no negligence on the part the P.W.2 in riding the Motor Cycle bearing Registration No.KA-17-EJ- 8454 and the offending Car bearing Registration No.KA-04-ML- 7279 as well as its driver, i.e., the Respondent No.2, are very much involved in the said road traffic accident, wherein, the Petitioner, who was a pillion rider of the said Motor Cycle, had sustained one grievous injury and one simple injury.
44. The Respondents No.1 and 2 have stated in their written statement that, the Respondent No.1 vehicle has been insured with the Respondent No.3 and as on the date of accident, the Insurance Policy was in force and the Respondent No.2 had a valid Driving Licence to drive the Car in question and in that view of the matter, they are in no way liable to pay any compensation and in the event any liability is to be fixed, it is only the Respondent No.3, which would be responsible to indemnify the Respondent No.1 and thereby satisfy the award amount, if any. The Respondent No.3 in its Written Statement has stated that, it has issued the Policy in favour of the Respondent No.1 as against the said Car, covering the period of the alleged accident and however, the liability/obligation of it shall be strict subject to proof of compliance of Section 64VB of Insurance Act, the alleged cause of action, the terms and conditions and law governing thereto and 42 M.V.C.NO.2170/2015 (SCCH-7) also the other enactments corresponding to the incident and other aspects and matters involved in adjudicating the matter and finally ascertainment of the liability of the Respondents. The R.W.1, who is the Manager Legal of the Respondent No.3 has stated in his examination-in-chief that, the alleged Car bearing Registration No.KA-04-ML-7279 was insured with their Insurance Company at the time of the alleged accident and the Policy was issued subject to the terms and conditions and obligation and the insured had to comply with Section 3 and Rule 3 of the Central Motor Vehicles Rules and subject to the obligations/defences under Sections 147 and 149 of the M.V. Act, apart from other obligations. He has further stated in his cross-examination that, the offending vehicle is insured with their Company and its Insurance Policy was valid at the time of accident. Further, from the contents of Ex.P.1 Order Sheet relating to C.C.No.2520/2014, Ex.P.7 Notice under Section 133 of M.V. Act, Ex.P.8 Reply to Notice to under Section 133 of M.V. Act and Ex.P.12 Judgment dated 29.11.2014 passed in C.C.No.2520/2014, it is made crystal clear that, at the time of accident, the Respondent No.1 was a R.C. Owner, the Respondent No.2 was a Driver and the Respondent No.3 is an Insurer of the offending Car bearing Registration No.KA-04-ML-7279 and the Respondent No.2 was having a valid and effective driving licence to drive such class of offending Car. There is allegation leveled by the Investigation Officer in Ex.P.2 Charge Sheet as against the Respondent No.2 that, at the time of accident, he was not having a valid and effective driving licence to drive such class of offending Car. From this material evidence, which is very much available on record, it is clearly proved that, at the time of accident, the Respondent No.1 was a R.C. Owner, the Respondent No.2 was a Driver and the Respondent No.3 was an 43 M.V.C.NO.2170/2015 (SCCH-7) Insurer of the offending Car bearing Registration No.KA-04-ML- 7279 and its Insurance Policy was valid, which covers the date of accident and the Respondent No.2 was having a valid and effective driving licence to drive such class of offending Car. The violation of the terms and conditions of the admitted Insurance Policy by the Respondent No.1 is not proved by the Respondent No.3. Under such circumstances, the Respondent No.1 being the R.C. Owner and the Respondent No.3 being the Insurer of the offending Car bearing Registration No.KA-04-ML-7279, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since the Respondent No.3 is an Insurer, it shall indemnify the Respondent No.1. Since, the Respondent No.2 was a driver of the offending Car bearing Registration No.KA-04-ML- 7279 at the time of accident, he is not liable to pay any compensation to the Petitioner. Hence, the petition filed by the Petitioner is liable to be allowed as against the Respondents No.1 and 3 and it is liable to be dismissed as against the Respondent No.2. In view of the above said reasons and findings on Issues, the principles enunciated in the Decision No.1 cited by the Learned Counsel appearing for the Respondent No.3 are not applicable to the present facts and circumstances of the case on hand and the principles enunciated in the Decision No.2 cited by the Learned Counsel appearing for the Respondent No.3 are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
45. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, 44 M.V.C.NO.2170/2015 (SCCH-7) ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondents No.1 and 3.
The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby dismissed without costs as against the Respondent No.2.
The Petitioner is entitled for compensation of Rupees 2,43,166/-
with interest at the rate of 9% p.a. (excluding future medical expenses of Rupees 20,000/-) from the date of the petition till the date of payment, from the Respondent No.3.
The Respondent No.3 shall deposit the said compensation and interest in this Tribunal, within two months from the date of this Order.
In the event of deposit of compensation and interest, entire amount shall be released in the name 45 M.V.C.NO.2170/2015 (SCCH-7) of the Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 10th day of April, 2017.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. Mutturaj Biradar
P.W.2 : Sri. Eshwara Poojari
P.W.3 : Sri. Siddalingappa A. Hampannavar
P.W.4 : Sri. K.C. Mahesh
P.W.5 : Dr. Jayanth S.H.
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : Certified copy of Order Sheet relating
to C.C.No.2520/2014
Ex.P.2 : Certified copy of Charge Sheet
Ex.P.3 : Certified copy of Complaint
Ex.P.4 : Certified copy of FIR
Ex.P.5 : Certified copy of Spot Hand Sketch
Ex.P.6 : Certified copy of Spot Panchanama
Ex.P.7 : Certified copy of Notice under Section
133 of M.V. Act
46 M.V.C.NO.2170/2015
(SCCH-7)
Ex.P.8 : Certified copy of Reply Notice
under Section 133 of M.V. Act
Ex.P.9 : Certified copy of Wound Certificate
Ex.P.10 : Certified copy of MVI Report
Ex.P.11 : Certified copy of Indemnity Bond
Ex.P.12 : Certified copy of Judgment
dated 29.11.2014 passed
in C.C.No.2520/2013
Ex.P.13 : Relieving Letter dated 10.04.2015
Ex.P.14 : Discharge Summary
Ex.P.15 : Medical Bills (19 in nos.)
Ex.P.16 : OPD Card
Ex.P.17 : Discharge Card
Ex.P.18 : Medical Prescriptions (6 in nos.)
Ex.P.19 : Xerox copy of Ration Card
Ex.P.20 : Xerox copy of D.L. relating
to Eshwar. S. Poojari
Ex.P.21 : Notarised Xerox copy of Identity
Card relating to Siddalingappa.
A. Hampannavar
Ex.P.22 : Inpatient Records
Ex.P.23 : Notarised Xerox copy of Identity
Card relating to Mahesh
Ex.P.24 : Outpatient Book
Ex.P.25 : X-ray Film
Ex.P.26 : Authorisation Letter dated 24.08.2016
Ex.P.27 : Summary of Treatment
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Jayashekar
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Certified copy of Police
Intimation dated 13.09.2014
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.