Bangalore District Court
Negligence vs No.2 Has Examined The Arto on 3 March, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 3rd day of March, 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.1313/2015
Sri. Upendra, ..... PETITIONER
S/o. Raju,
Aged about 29 years,
R/at Hennagara,
Masthenahalli,
Jigani Hobli,
Anekal Taluk,
Bangalore Urban.
(By Sri. A. Sreenivasaiah, Adv.,)
V/s
1. Sidde Gowda, ..... RESPONDENTS
No.22/7, Avalahalli,
1st Main Road,
Byatarayanapura,
Mysore Road,
Bangalore - 560 026.
2. The Manager,
The New India Assurance Co. Ltd.,
D.O.3, No.9/2,
Mahalakshmi Chambers,
2nd Floor, M.G. Road,
Bangalore - 560 001.
(Policy No.67190231140200001622,
Validity: 16.06.2014 to 15.06.2015)
2 M.V.C.NO.1313/2015
(SCCH-7)
(R1- Exparte)
(R2- By Sri. V. Rajashekar Reddy , 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 20,00,000/- with interest and costs.
2. The brief averments of the Petitioner's case are as follows;
a) The Respondent No.1 is the R.C. Owner and the Respondent No.2 is the Insurer of the Omini Car bearing Registration No.KA-01-P-2956.
b) On 30.01.2015 at about 5-45 p.m., when he was proceeding driving a Auto bearing Registration No.KA-03-D-670 and when the Auto reached near HCL Co., Jigani Link Road, Jigani, at that point of time and place, one Omni Car bearing Registration No.KA-01-P-2956 being driven by its driver in a rash and negligent manner endangering human life came in the same direction with high speed and due to excessive speed the driver of the Omni Car lost control over his vehicle and dashed against his Auto from behind, resulted in an accident. He sustained grievous injuries and was immediately shifted to Suhas Hospital, Jigani, Anekal and after first-aid treatment, he was taken to St. John's Hospital, Bangalore and admitted as an inpatient for one month.
3 M.V.C.NO.1313/2015(SCCH-7)
c) The accident occurred only due to rash and negligent driving of the driver of the Omini Car bearing Registration No.KA- 01-P-2956 and the jurisdictional Jigani Police have registered a case as against the driver of the said offending vehicle.
d) He sustained grievous injuries, such as, Fracture Shaft of femur left at the junction of middle and lower 3rd and other multiple injuries.
e) He underwent surgery of CRIF with IMIL on 09.02.2015 under SA. Post operative period was uneventful. After discharge from the Hospital, he was advised for strict bed rest, physiotherapy exercises, non-weight bearing, walk with walker and for periodical checkups. Accordingly, he is attending the Hospital for the same.
f) Due to permanent disability sustained in the accident, he cannot walk freely, sit cross legged, to squat, to kneel, stand firmly, to climb steps and to use Indian toilet. Due to grievous injuries sustained in the accident, he needs an attendant for his daily activities and he cannot walk without the help of an attendant/walker.
g) He was aged 29 years and was working as an Auto Driver getting income of more than Rupees 15,000/- p.m., and was hale and healthy prior to the accident. Due to permanent disability sustained in the accident, he is not in a position to do his driver job and now is idle without doing any work. Hence, this petition.
4 M.V.C.NO.1313/2015(SCCH-7)
3. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte on 25.06.2015.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 11.02.2016 passed on I.A.No.I, the written statement filed by the Respondent No.2 is taken on file.
5. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The claim petition is not maintainable either in law or on facts of the case.
b) It admits the issuance of the policy bearing No.67190231140200001622 covering the period from 16.06.2014 to 15.06.2015 in respect Maruthi Van bearing Registration No.KA- 01-P-2956 in favour of the Respondent No.1 and their liability if any, is subject to the terms and conditions of the policy and provisions of the Motor Vehicles Act, if the vehicle has been driven by a person, who did not possess valid and effective driving licence to drive the same at the time of alleged accident and it is not liable to indemnify the insured Respondent No.1, the claimant is put into strict proof of the same.
c) The Respondent No.1/insured has violated the provisions, i.e., Section 134(c) and Section 158(6) of the Motor Vehicles Act, 1989. The Owner/Insured and jurisdictional Police 5 M.V.C.NO.1313/2015 (SCCH-7) ought to have intimated about the alleged accident to the Insurer of the Maruthi Omini, which is involved in the alleged accident as required under the said provisions. In this case, they have failed to comply with Section 134(c) of the Motor Vehicles Act.
d) The fitness certificate issued by the RTO to the Maruthi Van is expired/Life time of the insured vehicle has been expired as on the date of accident and it is renewed after the accident since the Respondent No.2 violated the M.V. Act, hence, it is not liable to indemnify the insured Respondent No.1 as per the terms and conditions of the policy and M.V. Act. If at all, any compensation is to be awarded by this Hon'ble Court, it is the Owner of the Maruthi Van would be liable to pay the compensation in their personal capacity.
e) The alleged accident was not caused due to insured Maruthi Omini bearing Registration No.KA-01-P-2956 on 30.01.2015 as alleged in the claim petition and the Petitioner himself dashed against the Maruthi Omini and the Petitioner and vested interest persons have joined the hands with the Police to wrongfully implicate the said insured Car in the alleged accident to cause wrongful loss to it.
f) The Petitioner was running/carrying the passengers in the Auto Rickshaw bearing Registration No.KA-03-D-670 at the time of alleged accident having permit to run within the jurisdiction B.B.M.P. limits only, but, it is using at Jigani, Anekal Taluk, where there is no permit to run. At the time of alleged accident, the Petitioner also not having valid license to drive the Auto Rickshaw and caused the alleged accident due to the 6 M.V.C.NO.1313/2015 (SCCH-7) Petitioner negligence, due to the reasons, the Petitioner has lodged false complaint against the insured vehicle and fixed the insured vehicle to claim compensation from it.
g) Even if he suffers disability due to his own negligence as he was over taking the other vehicles coming on the road without seeing and caused the accident with a negligent manner without following the traffic rules and sustained injuries and he himself responsible for causing the injuries.
h) The Petitioner was riding his Car with a negligent manner and trying to over taking the vehicle coming on the road with a negligent manner without seeing, as such, no actionable negligence can be attributed against the driver of the Maruthi Van.
i) It reserves right to file their additional Counter/Written Statement in the event of changed circumstances and facts of the case. In the event of the insured/Respondent No.1 failing to contest the petition on merits or were collude with the claimants, it may be pleased to permit to avail all the defenses available open to the insured provided under Section of 170(B) of the M.V. Act.
j) In the event of this Hon'ble Court arriving at a conclusion that, it is liable to indemnify the insured, the Petitioner shall be entitled to interest only in respect of the pecuniary loss sustained no interest shall be awarded in respect of non- pecuniary damages. If the Petitioner claimed any future medical expenses and the same this Hon'ble Tribunal awarded it is not liable to pay interest for the said amount.
7 M.V.C.NO.1313/2015(SCCH-7)
k) The compensation claimed by the Petitioner is highly excessive and fanciful and has no nexus with the injuries sustained in the accident. Hence, prayed to dismiss the petition.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Omini Car bearing Reg.No.KA-01-P-2956 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?
7. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.15. On the other hand, the Respondent No.2 has examined the ARTO, Koramangala, as R.W.1, his Administrative Officer as R.W.2 and the Superintendent, RTO, Electronic City, as R.W.3 and has placed reliance upon Ex.R.1 to Ex.R.14. Ex.R.1 is marked through P.W.1 during the course of cross-examination, by confrontation. It is pertinent to note here that, Ex.P.14 CD relating to CT Scan is marked through P.W.1 and again Ex.P.14 OPD Book is marked through P.W.2 and to avoid the confliction in identifying the said 8 M.V.C.NO.1313/2015 (SCCH-7) Ex.P.14, which are marked through P.W.1 and P.W.2 twice, Ex.P.14 OPD Book, which is marked through P.W.2 is marked and considered at Ex.P.14(a) in the following discussion.
8. Heard the arguments.
9. In support of the submission, the Learned Counsel appearing for the Petitioner Sri. A. Srinivasaiah has placed reliance upon the decisions reported in,
i) ILR 2014 KAR 191 (Shri. Rangappa @ Rangappa Shetty V/s. Shri. Jayaramaiah and Another), wherein, it is observed that, Motor Vehicles Act 1988, sections 173(1) - Accident claim - Judgment and Award - Liability fastened on the owner of the offending vehicle but, not on the Insurer - Appealed against - Contention of the insurer is that, the offending vehicle did not possess fitness certificate at the relevant time and therefore, they are not liable to pay compensation -
HELD, the life of an Insurance Policy issued in respect of a Motor Vehicle will be valid for one year and for every next year either it has to be renewed or new policy has to be obtained. Therefore, the insurer at every time of insuring a vehicle and issuing policy or renewing such policy should verify whether the vehicle has possessed all the necessary certificates including the fitness certificate. The Insurance Companies cannot blindly insurer Motor Vehicles and collect premium and thereafter 9 M.V.C.NO.1313/2015 (SCCH-7) contend that, the vehicle did not possess fitness certificate at the relevant point of time and therefore they are not liable to pay compensation to the claimants. This attitude of the insurer cannot be encouraged any longer.
Further held, It is no doubt true as per Ex.R.1 an endorsement issued by the RTO, the fitness certificate of the offending vehicle was not in force as on the date of accident, if that, is so the insurer should not have insured the vehicle for the period during which vehicle did not possess the fitness certificate. The insurer cannot say they would insure a vehicle irrespective of the fact that, whether it has a fitness certificate or not and collect premium and when it comes to liability, their liability is subject to vehicle possessing fitness certificate.
ii) M.F.A.No.2955/2013 (M.V) (Smt. Ramanjinamma and Others V/s. M/s. United India
Insurance Company Ltd., and Another), wherein, it is observed that,
8. Re-Point No.: Learned Counsel appearing for the appellants at the out-set submits that, there is no dispute that, the deceased died due to the fatal injuries sustained in the road traffic accident that occurred on 11.06.2010. Further it is not in dispute that, the deceased was aged about 27 years and hale and healthy at the time of accident and claimants are wife and parents 10 M.V.C.NO.1313/2015 (SCCH-7) of the deceased. Further, the Learned Counsel vehemently submits that, as on the date of accident vehicle was duly insured with the Respondent No.1. the Tribunal without any justification on hyper technical ground has issued direction to the owner of the vehicle to indemnify the award amount as per the M.V. Act and also the ratio of law laid down by the Co-ordinate Division Bench in M.F.A. No.6621/2006 C/w M.F.A.Crob No.2304/2006 and also judgment dated 02.12.2014 in M.F.A. No.6311/2014 between Regional Manager, Oriental Insurance Company Ltd., V/s.
Smt. Dimple @ Rashmi Sethi and Others, wherein, it is held that, mere non-
possessing of fitness certificate is not a reason to deny compensation to the claimant and directed the insurer to satisfy the award, we find no merit in the contention of the Learned Counsel appearing for the Respondent No.1 insurer.
Following the said judgment of Division Bench of this Court referred above accepting the submission made by the Learned Counsel appearing for the claimants we hold that, the reasons assigned by the Tribunal for fastening liability on owner are not sustainable and cannot be accepted. Therefore, we hold that, non-possessing of fitness certificate is no reason for denying compensation to the claimants and the insurer is liable to indemnify the award amount first and thereafter recover the same from the Respondent No.2/owner in accordance with law if so advised or need arises.
iii) M.F.A.No.8573 of 2014 (MV) (Kum. Hema V/s. Saleem and Another), wherein, it is observed that, 11 M.V.C.NO.1313/2015 (SCCH-7)
8. It is not in dispute that, the vehicle in question did not possess fitness certificate. This Court has consistently held that, Insurance Company cannot be exonerated on the ground that, the insured vehicle did not possess fitness certificate on the date of the accident. (See MFA No.6311/2014 dated 02.12.2014 between REGIONAL MANAGER - ORIENTAL INSURANCE CO., LTD., v. SMT. DIMPLE @ RASHMI SETHI AND OTHERS and MFA No.2956/2013 dated 11.06.2015 between SMT. MALLAMMA AND OTHERS v. M/S. UNITED INDIA INSURANCE CO., LTD.,).
Therefore, fastening the liability on the owner of the vehicle does not arise.
11. In the result, the appeal succeeds and it is accordingly allowed in part. The Judgment and award of the Tribunal fastening the liability on the Respondent No.1 - owner of the vehicle is hereby set aside. I direct the Respondent No.2 -
Insurance Company to deposit a sum of Rupees 3,80,083/- towards compensation with interest at 6% per annum on Rupees 3,50,083/- from the date of petition till the date of deposit within a period of six weeks from the date of receipt of copy of this order. The appellant is permitted to withdraw the amount on its deposit. No costs.
iv) M.F.A.No.10009/2013 C/w M.F.A. No.10010/2013, 10011/2013, 10012/2013, 10013/2013 and 1336/2014 (MV) (Regional Manager, New India Assurance Co. Ltd., V/s. Lakshmi Rangaiah and Another, Regional Manager, New India Assurance Co. Ltd., V/s. Chikkarevaiah and Another, Regional Manager, New India Assurance Co. Ltd., V/s. Smt. Uma and others, Regional 12 M.V.C.NO.1313/2015 (SCCH-7) Manager, New India Assurance Co. Ltd., V/s. Gangadharswamy and Another, Regional Manager, New India Assurance Co. Ltd., V/s. H.P. Narasimhaiah and Another, Regional Manager, New India Assurance Co. Ltd., V/s. Smt. Uma and Others), wherein, it is observed that,
8. The Learned Counsel for claimant would submit that, fitness certificate had expired on 16.11.2012.
The accident had taken place on 06.12.2012. The fitness certificate was subsequently renewed. The policy was in force as on the date of accident.
9. In a decision reported in ILR 2014 KAR 191 (in the case of Rangappa @ Rangappa Shetty V/s. Jayaramaiah and Another) this Court has held that, Insurance Company cannot be exonerated on the ground that, insured vehicle did not possess fitness certificate on the date of accident. this Court has followed the judgment of Allahabad High Court reported in 2005(2) TAC 6 (All) (in the case of Chandresh Kumar Agarwal V/s. Yogedra Kumar Srivastava and Another) and also judgment of this Court rendered in MFA 6621/2006 C/w MFA CROB 304/2006 (in the case of New India Assurance Co. Ltd., V/s. Sri. N. Srinivasa Murthy and Others).
10. In a decision reported in1992 ACJ 148 (in the case of Alam Yasin Mirza V/s V.K. Makwana and Others) the High Court of Gujarat has held that, Insurance Company cannot seek 13 M.V.C.NO.1313/2015 (SCCH-7) exception on the ground that, there Written Statement no fitness certificate to the insured vehicle on the date of accident.
11. In view of what has been held in the afore stated judgments, the contention of Insurance Company that, insured vehicle did not have fitness certificate, therefore, the Tribunal should not have fastened liability on the Insurance Company cannot be accepted.
12. the Learned Counsel for Insurance Company has relied on the judgment of this Court reported in 2011(4) AIR Kar R 200 (in the case of New India Assurance Co. Ltd., V/s. M. Sureshappa and Another) wherein, this Court has held that, violation of permit condition by the insured will exonerate the Insurance Company.
13. In the aforesaid decision, this Court has dealt with existence or otherwise of valid and effective driving licence. Therefore, what has been held in the aforesaid decision cannot be applied to instant case.
14. It is not dispute that, Insurance Policy was in force as on the date of accident. The Insurance Company at the time of issuing policy had not verified the date on which fitness certificate would expire. The insurer having issued the policy without verification of fitness certificate cannot disown its liability. Therefore, the finding of Tribunal that, insured and insurer are jointly and 14 M.V.C.NO.1313/2015 (SCCH-7) severally liable to pay compensation does not call for interference.
v) M.F.A.No.6311 of 2014 (MV) (Regional Manger, Oriental Insurance Company Ltd., V/s. Smt. Dimple @ Rashmi Sethi and Another), wherein, it is observed that,
2. Questioning the liability to satisfy the award as well as the excessive grant of compensation, the insurer has filed this appeal. On liability, it is contended that, the driver of the vehicle did not possess a fitness certificate. In the absence of a fitness certificate, the insurer cannot be held liable to satisfy the award. The Tribunal on relying on the judgment of the Division Bench of this Court in the case of New India Assurance Company Limited V/s. Sri. N. Srinivasa Murthy and Others, in MFA No.6621/2006 (Motor Vehicle) C/w.
M.F.A. Crob. No.2304/2006 (MV), wherein, it is held that, a mere non-
possessing of fitness certificate is not a reason to deny compensation to the claimant. Following the said judgment, it was held that, the insurer is liable to satisfy the award. Under these circumstances, we do not find any merit in the contention that, the absence of fitness certificate would absolve the insurer from satisfying the award.
Hence, the said contention is rejected.
10. In support of the submission, the Learned Counsel appearing for the Respondent No.2 Sri. V. Rajashekar Reddy has placed reliance upon the decisions reported in, 15 M.V.C.NO.1313/2015 (SCCH-7)
i) (2014) 9 Supreme Court Cases 324 (Narinder Singh V/s. New India Assurance Company Limited and Others), wherein, it is observed that, A. Insurance - Motor Vehicle insurance
- Fundamental breach of policy terms -
vehicle damaged by accident - vehicle found to have expired temporary registration on date of accident - repudiation of claim by insurer - state commissioner and National commission upholding decision of insurer, upheld.
- Held, using a Motor Vehicle on public road without registration is not only an offence punishable under Section 192 of Motor Vehicle Act, 1988 but, also fundamental breach of terms and conditions of policy contract - contention that, purpose of temporary / permanent registration is only for purpose of identification of the vehicle for tracing owner of vehicle in case of accident and since temporary registration number (although it had expired) was still affixed on the vehicle, appellant is entitled of insured amount - tenability - held, under S. 39 of 1988 Act, no person shall drive a Motor Vehicle without valid registration and contravention of the same is punishable under S.192 of M.V. Act - Further, temporary registration is valid only for a period not exceeding one month unless extended for unforeseen circumstances beyond control of owner - in instant case, thought owner of said vehicle obtained temporary registration, but, on date of accident temporary registration had expired and appellant (vehicle owner) had neither applied for extension of temporary registration nor obtained permanent registration - Hence, held, no infirmity in order passed by State Commission and 16 M.V.C.NO.1313/2015 (SCCH-7) National Commission - Motor Vehicles Act, 1988 - Ss. 39, 43 and 192 - Non-
registration of vehicle - vehicle insurance - liability of insurer - Consumer Protection Act, 1986, Ss.2(1)(0) and (g).
B. Motor Vehicle Act, 1988 - Ss. 39, 43 and 192 - Registration of Motor Vehicle -
Mandatoriness of - Temporary registration - duration for which valid - Extension when permissible - Held, using a vehicle on public road without any registration is an offence punishable - No person shall drive a Motor Vehicle in any public place without valid registration - Further held, temporary registration is valid only for a period of one month that, can be extended only where chases of a vehicle with temporary that, can be extended only where chassis of a vehicle with temporary registration is detained in workshop beyond one month for being fitted with a body or for unforeseen circumstances beyond control of owner.
ii) M.F.A.No.8007/2013 (MV) C/w M.F.A. No.3921/2013 (MV) (N.T. Sheshappa Shetty and Others V/s. M. Saraswathi and Another, M/s. ICICI Lombard General Insurance Company Ltd., V/s. N.T. Sheshappa Shetty and Others), wherein, it is observed that,
16. However, when it comes to the liability, it is clear seen that, when deceased Thippeswamy himself was at fault in driving the Motor Cycle without having valid driving licence, the question of attributing negligence solely to the driver of the lorry involved in the accident does not arise specifically for the reason that, the Charge Sheet -
17 M.V.C.NO.1313/2015(SCCH-7) Ex.R.8 discloses that, rider of the Motor Cycle was to having valid driving licence to ride the Motor Cycle at the relevant point of time. In the instant case, though rider of the Motor Cycle did not have valid driving licence to drive the Motor Cycle, Charge Sheet - Ex.R.6 filed against Ramesh, the driver of the Lorry, which indicates that, there was negligence on his part in causing the accident cannot be ignored. In that views of the matter, this Court hold that, there is contributory negligence on the part of deceased Thippeswamy, the rider of the Motor Cycle and driver of the lorry in causing the accident in the ratio of 50:50. Hence, the liability is required to be fastened on the driver of the Lorry to an extent of 50%. In the result, there is vicarious liability on the owner of the Lorry as well as contributory obligation on the part of the insurer in satisfying 50% of the compensation awarded by the Tribunal.
iii) 2014 (2) AKK 269 (Nazeer alias Nazeer Ahmed V/s. Chandrashekar Gowda and Another), wherein, it is observed that, (C) Motor Vehicle Act (59 of 1988) Ss. 147, 56, 39 - liability of insurer -
Claimant sustained two grievous injuries and one simple injury - offending vehicle did not have valid fitness certificate at the time of accident - As per Section 56 of Act, a transport vehicle shall not be deemed to be validly registered for purpose of Section 39, unless it carries a 18 M.V.C.NO.1313/2015 (SCCH-7) Certificate of Fitness - Insurer not liable to pay compensation.
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
3,74,110/- 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.2.
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 30.01.2015 at about 5- 45 p.m., when he was proceeding and driving a Auto bearing Registration No.KA-03-D-670 and when he reached near HCL Co., Jigani Link Road, Jigani, at that point of time and place, one Omni Car bearing Registration No.KA-01-P-2956 being driven by its driver in a rash and negligent manner endangering to human life, came in the same direction with high speed and due to excessive speed, the driver of the Omni Car lost control over his vehicle and dashed against his Auto from behind, resulted in an accident. He has further stated that, he sustained grievous 19 M.V.C.NO.1313/2015 (SCCH-7) injuries and was immediately shifted to Suhas Hospital, Jigani, Anekal and after first-aid treatment, he was taken to St. John's Hospital, Bangalore and admitted as an inpatient for 27 days. He has further stated that, the accident occurred only due to rash and negligent driving of the driver of the Omini Car bearing Registration No.KA-01-P-2956 and the Jigani Jurisdictional Police have registered a case and filed the Charge Sheet as against the driver of the said offending vehicle. He has further stated that, due to accident, he sustained grievous injuries, such as, fracture shaft of femur left at the junction of middle and lower 3rd and other multiple injuries.
13. No doubt, the P.W.1 in his cross-examination has also stated that, at the time of accident, he was driving the Auto Rickshaw dropping the passengers from Jigani to Industrial Area and he has D.L. to drive the Auto Rickshaw. To consider the same, the Petitioner has not produced his driving licence to show that, at the time of accident, he was having valid and effective driving licence to drive the said Auto Rickshaw. In this regard, the P.W.1 in his cross-examination has stated that, he has not produced his driving licence. Further, though he has voluntarily stated that, at the time of accident, his D.L. was lost and he has no hurdle to produce his D.L. Extract by obtaining from the concerned RTO, the Petitioner did not care to produce the same. Further, the Petitioner has not produced any vehicular documents relating to the said Auto Rickshaw bearing Registration No.KA-03-D-670, which was driving by him at the time of accident, even though he has clearly stated in his cross-examination that, the Auto Rickshaw, which was driving by him at the time of accident, was owned by Suresh and he has purchased the said Auto Rickshaw 20 M.V.C.NO.1313/2015 (SCCH-7) bearing Registration No.KA-03-D-670 at the time of accident, i.e., August 2014 from the said Suresh, but, the vehicular documents were not transferred in his name. He has further stated that, the vehicular documents relating to the said Auto Rickshaw were also lost in the said accident. He has further admitted that, the said Auto Rickshaw was having a permit to run within the BBMP limit and it was standing in the name of the said Suresh. He has further clearly identified Ex.R.1 Permit relating to the said Auto Rickshaw by stating that, it is obtaining the Auto Rickshaw, which was driving by him at the time of accident. He has further stated that, due to the alleged accident, the passengers, who were traveling in the Auto Rickshaw at the time of accident, had not sustained any injuries. Further, the Petitioner has not produced the medical documents relating to Suhas Hospital, wherein, he has taken first-aid treatment. In this regard, the P.W.1 in his cross-examination has stated that, after the accident, he was shifted to Suhas Hospital, wherein, he had taken first-aid treatment and he has not produced the medical documents relating to the said Hospital. Further, though the P.W.1 in his cross-examination has clearly stated that, he has no hurdle to produce the MLC Extract, he has not produce the same and also the Police Intimation to show that, with a history of accident in question, he was admitted in the Hospital to take treatment to the said accidental injuries. The P.W.1 has further stated that, the said Suhas Hospital Authority had not told him that, they were not given treatment to him. From this, it appears that, the Petitioner himself discharged from the said Hospital without taking any treatment, which disclosed that, as against the medical advice, he has discharged from the said Hospital. He has further stated that, he does not know the D.L. number and he has not 21 M.V.C.NO.1313/2015 (SCCH-7) applied to the said RTO Authority for issuance of duplicate D.L. or its extract and he has not lodged a complaint before the Police in respect of lost of his D.L. in the alleged accident. Further, the R.W.2, who is an Administrative Officer of the Respondent No.2 has stated in his examination-in-chief that, the Petitioner was riding the Auto Rickshaw bearing Registration No.KA-03-D-670 without having valid and effective driving licence at the time of accident with a rash and negligent manner and he himself caused the alleged accident and he is only culprit for causing the alleged accident and as per IMV Report, both the vehicles are damaged in the front side. The Respondent No.2 has produced Ex.R.10 MVI Report. Further, the Respondent No.2 has examined the Superintendent, RTO, Electronic City as R.W.3 to prove the driving licence relating to the Petitioner, who has stated in his examination-in-chief by producing Ex.R.14 Letter dated 28.11.2016 that, after search in computer, they have issued Ex.R.14 Letter and based on the address of Sri. Upendra S/o. Raju, they have also search the D.L. particulars relating Ex.R.14. He has further stated in his cross-examination that, the D.L. particulars are also maintained in their Office manually and without giving D.L., number and correct name of the D.L., holder, the particulars of the D.L., cannot be ascertain. From the said evidence of R.W.3 as well as the contents of Ex.R.14 Letter dated 28.11.2016, it appears that, even though the Respondent No.2 has made prompt efforts to secure the driving licence of the Petitioner to know that, whether at the time of accident, he was having a valid and effective driving licence to drive the Auto Rickshaw, he has not keeping the same inspite of best efforts.
22 M.V.C.NO.1313/2015(SCCH-7)
14. But, based on the said grounds, which are narrated in detail, it cannot be said and come to the conclusion that, the entire negligence is on the part of the Petitioner in driving the Auto Rickshaw bearing Registration No.KA-03-D-670 in the commission of the said road traffic accident as he was not having a valid and effective driving licence to drive such class of Auto Rickshaw and there was no negligence on the part of the driver of the offending Omni Car bearing Registration No.KA-01-P-2956 in the commission of the said road traffic accident and the said offending Omini Car as well as its driver are not involved in the said alleged accident, which caused to the Petitioner, as, to corroborate his case as well as oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 MVI Report, Ex.P.5 Charge Sheet, Ex.P.6 Wound Certificate, Ex.P.7 Case Summary and Discharge Card, Ex.P.12 X-ray Films 3 in numbers, Ex.P.13 CD relating to Ex.P.12 X-ray Films and Ex.P.14 CD relating to CT Scan, which clearly disclosed that, at the time of accident, the Petitioner was taking 'U' turn by driving the said Auto Rickshaw bearing Registration No.KA-03-D-670 and at that time, the driver of the offending Omni Car bearing Registration No.KA-01-P-2956 came with very high speed, rash and negligent manner without observing the said Auto Rickshaw and dashed to the said Auto Rickshaw on its behind and due to the said impact, the Petitioner had sustained one simple injury and one grievous injury and by admitting as an inpatient from 31.01.2015 to 20.02.2015, i.e., for 21 days, he took treatment to the said accidental injuries at St. John's Hospital, Bangalore, which is clear from the following discussion. Furthermore, the P.W.1 in his cross-examination has clearly stated that, the vehicular documents relating to the said Auto Rickshaw were also lost in the 23 M.V.C.NO.1313/2015 (SCCH-7) said accident and when he was driving the said Auto Rickshaw at the time of accident, the offending Omini Car came on his left side by overtaking it and at that time, the accident was occurred and after the accident, he was shifted to Suhas Hospital, wherein, he had taken first-aid treatment and the said Hospital Authority has asked him about how he had sustained the injury and he was admitted as an inpatient in St. John Hospital for 27 days and the D.L., which he obtained as authorized to drive two wheeler, four wheeler and three wheeler. From the said evidence of P.W.1, it is further made crystal clear that, though the P.W.1 has been cross- examined by the Respondent No.2, nothing has been elicited from his mouth to consider his specific defence that, the entire negligence is on the part of the Petitioner in driving the said Auto Rickshaw bearing Registration No.KA-03-D-670 and there was no negligence on the part of the driver of the offending Omni Car bearing Registration No.KA-01-P-2956. Furthermore, though the notice was duly served on the Respondent No.1, who was a R.C. Owner of the offending Omni Car bearing Registration No.KA-01- P-2956, he was remained absent and hence, he is placed as exparte. The non-appearance of the Respondent No1 clearly implies that, he has indirectly admitted the entire case made out by the Petitioner as against him in the present petition.
15. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the Petitioner himself has lodged Ex.P.2 Complaint before the Jigani Police as against the driver of the offending Omni Car bearing Registration No.KA-01-P-2956 by alleging that, on 30.01.2015 at about 5.45 P.M., when he was driving his Auto Rickshaw bearing Registration No.KA-03-D-670 along with passengers from APC Circle on Masthenahalli Road towards DLF 24 M.V.C.NO.1313/2015 (SCCH-7) and he took 'U' turn at Jigani Link Road in front of HCL, at that time, Omni Car bearing Registration No.KA-01-P-2956 came from Bommasandra by its driver with very high speed, rash and negligent manner and dashed left portion of the Auto Rickshaw and due to the said impact, the Auto caused damages and he had sustained grievous injuries on his right forehead, left hand, fingers, right knee, cheek and left leg and the passengers, who were traveling in the Auto Rickshaw not sustained any injuries and after the accident, the driver of the offending Maruthi Omini Car fled away from the accidental spot and Aman and Jagannath, who were proceeding on the accidental spot and others shifted him to Suhas Hospital, Jigani, for treatment and as such, he prayed to take necessary legal action as against the driver of the offending Omini Car and based on the said Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Omni Car for the offences punishable under Sections 279 and 337 of IPC under Crime No.12/2015. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Complaint by the Petitioner himself in respect of the accident caused to him.
16. The contents of Ex.P.3 Spot Panchanama and Ex.P.4 and Ex.R.10 MVI Reports further clearly disclosed that, when the Petitioner was taking 'U' turn in front of HCL and Fine Components and Malls Pvt. Ltd., Jigani to Bommasandra Link Road, at that time, the offending Omni Car bearing Registration No.KA-01-P-2956 came with very high speed, rash and negligent manner by its driver from Bommasandra towards Jigani and dashed to the said Auto Rickshaw bearing Registration No.KA-03- D-670 and due to the said impact, the Auto Rickshaw caused 25 M.V.C.NO.1313/2015 (SCCH-7) damages and the Petitioner had sustained grievous injuries and if the driver of the offending Maruthi Omini Car could have taken a little care while taking 'U' turn, the said road traffic accident could not be occurred and he could have avoided the said road traffic accident and the entire negligence is on the part of the driver of the offending Maruthi Omini Car in the commission of the said road traffic accident and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident while turning the said Auto Rickshaw at the accidental spot. The damages caused to the said offending Omni Car bearing Registration No.KA-01-P-2956 and Auto Rickshaw bearing Registration No.KA-03-D-670 are clearly mentioned in Ex.P.4 and Ex.R.10 MVI Reports, which clearly disclosed about the terrific impact of the said accident. It is also clearly mentioned in Ex.P.4 and Ex.R.10 MVI Reports that, the said accident was not occurred due to any mechanical defects of the said vehicles.
17. The contents of Ex.P.6 Wound Certificate clearly disclosed that, with an alleged history of road traffic accident said to have been caused on 30.01.2015 at 5-00 p.m., near HCL Office, Jigani, the Petitioner was brought to St. John's Medical College and Hospital, Bangalore, to take treatment to the accidental injuries and on examination, it is found that, he had sustained injuries, i.e., multiple abrasions of various sizes over right knee and tenderness, swelling and deformity over distal half of left thigh and X-ray left thigh shows fracture shaft of left femur, i.e., one simple injury and one grievous injury and by admitting as an inpatient from 31.01.2015 to 20.02.2015, i.e., for 21 days, he took treatment to the said accidental injuries in the said Hospital.
26 M.V.C.NO.1313/2015(SCCH-7)
18. The contents of Ex.P.7 Case Summary and Discharge Record, Ex.P.12 X-ray Films 3 in numbers, Ex.P.13 CD relating to Ex.P.12 X-ray Films and Ex.P.14 CD relating to CT Scan disclosed that, with alleged history of road traffic accident on 30.01.2015 around 7-30 p.m., the Petitioner was brought to St. John's Medical College Hospital, Bangalore, on 31.01.2015 itself and during the course of treatment, it is finally diagnosed fracture shaft of femur left at the middle and lower 3rd and by admitting as an inpatient from 31.01.2015 to 20.02.2015, i.e., for 21 days, he took treatment to the said accidental injuries in the said Hospital.
19. From the above said medical evidence, it is clearly proved that, in the said road traffic accident, the Petitioner had sustained one simple injury and one grievous injury and by admitting as an inpatient from 31.01.2015 to 20.02.2015, i.e., for 21 days, he took treatment to the said accidental injuries at St. John's Medical College Hospital, Bangalore.
20. The contents of Ex.P.5 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to high speed, rash and negligent manner of driving of the offending Omni Car bearing Registration No.KA-01-P-2956 by its driver, the road traffic accident was taken place on 30.01.2015 at about 5.45 P.M., which dashed to the Auto Rickshaw bearing Registration No.KA-03-D-670, which was driving by the Petitioner and when he was taking 'U' turn near HCL Company, Jigani to Bommasandra Link Road, due to the said impact, the Petitioner had sustained one simple injury on his right knee and grievous injury on his left thigh and Auto Rickshaw caused damages and as such, after thorough investigation, the Investigating Officer has 27 M.V.C.NO.1313/2015 (SCCH-7) filed a charge sheet as against the driver of the offending Omini Car for the offences punishable under Sections 279 and 338 of IPC. There is no allegation leveled by the Investigating Officer in Ex.P.5 Charge Sheet as against the Petitioner about his negligence in the commission of the said road traffic accident, when he was driving the Auto Rickshaw bearing Registration No.KA-03-D-670 in the accidental spot when he was taking right turn.
21. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the driver of the offending Omni Car bearing Registration No.KA-01-P-2956 in the commission of the said road traffic accident and there was no negligence on the part of the Petitioner in driving the Auto Rickshaw bearing Registration No.KA-03-D-670 in the commission of the said road traffic accident and the offending Omni Car bearing Registration No.KA- 01-P-2956 as well as its driver are very much involved in the said road traffic accident, which caused to the Petitioner, wherein, the Petitioner had sustained one simple injury and one grievous injury. Accordingly, I answered Issue No.1 in the Affirmative.
22. ISSUE NO.2 :- The Petitioner has not specifically stated his actual age in his examination-in-chief. Even the Petitioner has not produced any authenticated documents to consider his actual age at the time of accident. Further, the Police documents disclosed that, at the time of accident, the Petitioner was 28 years old and the medical documents disclosed that, he was 30 years old at the time of accident. From this, it appears that, there is discrepancy in mentioning the actual age of the Petitioner at the time of accident in the Police and medical 28 M.V.C.NO.1313/2015 (SCCH-7) documents. The P.W.1 in his cross-examination has clearly stated that, his date of birth is on 25.03.1982. The date of accident is on 30.01.2015. On perusal of the said dates, it appears that, at the time of accident, the Petitioner was 33 years old. Hence, the age of the Petitioner is considered as 33 years at the time of accident.
23. The P.W.1 has stated that, he was working as an Auto driver and getting income more than Rupees 15,000/- p.m., and he was hale and healthy prior to the accident. Except his oral version, the Petitioner has not produced any authenticated documents to consider his avocation and income at the time of accident. Even the Petitioner has not produced his driving licence, to show that, he was having a valid and effective driving licence at the time of accident to drive the Auto Rickshaw. In this regard, the P.W.1 in his cross-examination has clearly stated that, he has not produced any documents to show that, at the time of accident, he was working as a Auto driver by getting income more than Rupees 15,000/- per month. Further, the Petitioner has not disclosed his educational qualification. In the absence of the material documents, as the Petitioner was driving the Auto Rickshaw at the time of accident and he was 33 years old at the time of accident, which disclosed about his family status with wife, children and parents, by considering the same, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 8,000/- per month at the time of accident. Hence, the notional income of the Petitioner is considered as Rupees 8,000/- per month at the time of accident.
24. The P.W.1 has stated that, he underwent surgery of CRIF with IMILN on 09.02.2015 under S.A. Post operative period 29 M.V.C.NO.1313/2015 (SCCH-7) was uneventful and after discharge from the Hospital, he was advised for strict bed rest, physiotherapy exercises, non-weight bearing walk with walker and for periodical checkups and accordingly, he is attending the Hospital for the same. No doubt, except Ex.P.6 Wound Certificate, Ex.P.7 Case Summary and Discharge Record, Ex.P.12 X-ray Films 3 in numbers, Ex.P.13 CD relating to Ex.P.12 X-ray Films and Ex.P.14 CD relating to CT Scan, the Petitioner has not produced any follow-up records to show that, even after discharge from the Hospital, he had taken regular follow-up treatment to the said accidental injuries as per the advice of the treated Doctors. But, it no way affects to consider the same, as, based on the contents of Ex.P.6 Wound Certificate and Ex.P.7 Case Summary and Discharge Record, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained multiple abrasions of various sizes over right knee and tenderness, swelling and deformity over distal half of left thigh and X-ray left thigh shows fracture shaft of left femur, i.e., one simple injury and one grievous injury and by admitting as an inpatient from 31.01.2015 to 20.02.2015, i.e., for 21 days, he took treatment to the said accidental injuries at St. John's Medical College Hospital, Bangalore and during the course of treatment, it is diagnosed fracture shaft of femur left at the middle and lower 3rd. Further, it is clearly mentioned in Ex.P.7 Case Summary and Discharge Records that, CRIF with IMILN was done on 09.02.2015 and at the time of discharge, he was advised to take medication, review and walking with walker. Since, during the course of treatment, implants are inserted to the fracture site of the Petitioner and even after discharge from the Hospital, the Petitioner was very much required regular follow-up treatment to the said accidental injuries 30 M.V.C.NO.1313/2015 (SCCH-7) as per the advice of the treated Doctors. Further, the P.W.1 in his cross-examination has stated that, after discharge from the said Hospital, he has been regularly taking follow-up treatment once in a month and once in 20 days. Hence, the nature of injuries sustained by the Petitioner in the said road traffic accident, the line of treatment given to him to the said accidental injuries during the course of treatment, length of treatment and follow-up treatment taken by him to the said accidental injuries even after discharge from the Hospital can very well be believed and accept.
25. The P.W.1 has stated that, due to disability sustained in the accident, he cannot stand firmly, walk freely, kneel, squat, sit cross legged, climb steps and to use Indian toilet and pain is still persisting on his left leg and even today, he cannot walk freely and if he walk for a furlong, he get pain and swelling on his leg.
26. The P.W.2 has stated that, recently, he examined the Petitioner at Victoria Hospital on 23.03.2016 exclusively for disability assessment and on clinical examination, he found the disabilities, i.e., difficulty to stand and bear weight on left leg, to sit cross legged, to squat on the floor, to climb up and down the staircase, to walk on the slope and to walk on the plain surface. By considering the rage of movements of left hip joint, left knee joint, loss of power of muscles acting around left hip joint and left knee joint and based on the Findings and Guidelines and Gazette Notification, the P.W.2 has opined that, the Petitioner suffers the permanent residual physical disability of about 17.55% of whole body. He has further stated that, the radiological examination revealed fracture shaft of left femur shows union with implants in 31 M.V.C.NO.1313/2015 (SCCH-7) situ. The P.W.2 has produced Ex.P.14(a) OPD Book and Ex.P.15 X-ray Film.
27. But, only based on the said oral evidence of P.W.1 and P.W.2 coupled with the contents of the above referred medical documents, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from permanent residual physical disability of about 17.55% to the whole body, as, admittedly, the P.W.2 is not a treated Doctor and he has only assessed the disability of the Petitioner and the P.W.2 has not specifically assessed the permanent physical disability of the Petitioner by considering his nature of work, i.e., avocation. Further, the P.W.2 in his examination-in-chief itself has clearly stated that, radiological examination revealed fracture shaft of left femur shows union with implants in situ. Further, the P.W.2 has clearly stated in his cross-examination that, he has only gone through the Wound Certificate and Discharge Summary relating to St. John Medical College and Hospital and as per X-ray Films dated 23.03.2016, the fracture is united and due to nature of injury and immobilization, the loss of muscle power and restriction of movements are arises and in respect of restriction of movements and loss of muscle power, physiotherapy treatment is advised and as per the medical records, at the time of discharge, it is advised to the Petitioner to take physiotherapy treatment, but, he has not seen the documents in this regard. He has further clearly stated that, he does not know personally regarding the occupation of the Petitioner. From the said evidence of P.W.2, it appears that, the P.W.2 has not verified all the medical documents relating to the Petitioner while assessing the disability of the Petitioner and if the implants are removed and physiotherapy 32 M.V.C.NO.1313/2015 (SCCH-7) treatment taken regularly, the said extent of disability would be definitely reduced. Further, though it is specifically stated by the Petitioner that, he was working as an Auto driver, he has not produced his driving licence to consider the same. Further, the Petitioner has utterly failed to prove his avocation at the time of accident as a driver. Further, neither the Petitioner nor P.W.2 produced the disability certificate. Even the Petitioner has not produced the disability certificate issued by the competent Doctor or the treated Doctor. Therefore, the said extent of 17.55% permanent residual physical disability of whole body as stated by the P.W.2 is an exorbitant and unreasonable and hence, it is not accepted.
28. However, at the time of accident, the Petitioner was 33 years old and he had sustained one simple injury and one grievous injury and by admitting as an inpatient totally for 21 days, he took treatment to the said accidental injuries, by considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering permanent physical and functional disability of 12% to the whole body, which is believable and acceptable one. Hence, the Petitioner is entitled for compensation under the following heads.
29. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 12%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 12%.
33 M.V.C.NO.1313/2015(SCCH-7)
30. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 33 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's Case is 16.
31. As the Petitioner is suffering from permanent physical and functional disability of 12% to the whole body. The notional income of the Petitioner is already considered as Rupees 8,000/- per month. Therefore, the loss arising out of the said 12% disability for monthly income of Rupees 8,000/- by applying multiplier 16 comes to Rupees 1,84,320/-, i.e., (Rs.8,000/- x 12 x 16 x 12%).
32. As per Ex.P.6 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained one simple injury and one grievous injury. The Petitioner was in the Hospital as an inpatient from 31.01.2015 to 20.02.2015, i.e., for 21 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 40,000/- towards pain and suffering.
33. As it is already observed that, the age of the Petitioner was 33 years. He has to lead remaining his entire life with 12% 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.
34. The Petitioner had sustained one simple injury and one grievous injury and he was in the Hospital as an inpatient for 21 34 M.V.C.NO.1313/2015 (SCCH-7) 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 8,000/- per month, a sum of Rupees 24,000/- is awarded towards loss of income during the laid up period.
35. The P.W.1 has stated that, he spent Rupees 1,00,000/- towards purchase of medicine and Hospital charges, Rupees 20,000/- towards conveyance and nourishment food and Rupees 10,000/- towards attendant charges during inpatient and outpatient period. In this regard, the Petitioner has produced Ex.P.8 Medical Bills 42 in numbers, which is amounting of Rupees 32,331-90, Ex.P.9 Medical Bills 7 in numbers, which is amounting of Rupees 75,886-50, Ex.P.10 Medical Prescriptions 38 in numbers and Ex.P.11 Advance Receipts 3 in numbers. The P.W.1 in his cross-examination has clearly stated that, he has no medi- claim policy. He has further stated that, serial No.3 Ex.P.9 Medical Bills is relating to return of medicines. On perusal of Ex.P.9 Medical Bills, it appears that, Serial No.1 amounting of Rupees 4,000/- is for concession and serial No.3 amounting of Rupees 1,097/- is far inpatient refund voucher, which clearly goes to show that, out of Rupees 75,886-50, Rupees 4,000/- is given as concession and Rupees 1,097/- is refund amount. Hence, the said amount of Rupees 4,000/- relating to Serial No.1 and Rupees 1,097/- relating to Serial No.3 of Ex.P.9 Medical Bills has to be deducted in the total amount of Rupees 75,886-50. After deduction of the said amount of Rupees 4,000/- and Rupees 1,097/-, totally Rupees 5,097/- in the total amount of Rupees 75,886-50, the balance comes to Rupees 70,789-50. Further, on perusal of title of Ex.P.8 Medical Bills 42 in numbers, it appears that, they are inpatient vouchers and not Medical Bills. Further, 35 M.V.C.NO.1313/2015 (SCCH-7) the amount of Rupees 35,276/- is shown as Pharmacy in Serial No.1 of Ex.P.9 Medical Bills, which includes the amount covered under Ex.P.8. Therefore, the amount of Rupees 32,331-90, which covered under Ex.P.8 cannot be taken into for consideration. Hence, the amount covered under Ex.P.8, which is amounting of Rupees 32,331-90 is rejected. In view of the said reasons, a sum of Rupees 70,789-50, which covered under Ex.P.9 Medical Bills can only be taken into for consideration. The Petitioner has taken treatment at St. John's Medical College and Hospital, wherein, he was taken treatment as an inpatient from 31.01.2015 to 20.02.2015, i.e., for 21 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 70,789-50, which is rounded off Rupees 70,790/- to the Petitioner.
36. The P.W.1 has stated that, he need to undergo one more surgery for removal of implants, which was fixed at the time of surgery, for which, he need to spend more than Rupees 50,000/-. The P.W.2 has stated that, the Petitioner is advised to undergo another operation for removal of implants from left fumur. It is clearly mentioned in Ex.P.7 Case Summary and Discharge Record about ORIF with IMILN done on 09.02.2015, 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. Neither the Petitioner nor P.W.2 produced the estimation for removal of implants. In this regard, the P.W.1 has clearly stated in his cross-examination that, he has not produced the estimation in respect of future treatment.
36 M.V.C.NO.1313/2015(SCCH-7) However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 20,000/- to the Petitioner.
37. As the Petitioner was taken treatment as an inpatient for 21 days, it is necessary to award a sum of Rupees 5,000/- towards conveyance charges, Rupees 5,000/- towards attendant charges and Rupees 5,000/- towards food, nourishment and diet charges etc.,
38. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. Rs. 1,84,320-00 arising out of 12% Disability
2. Pain and sufferings Rs. 40,000-00
3. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
4. Rs. 24,000-00 up period
5. Actual medical expenses Rs. 70,790-00
6. Future medical expenses Rs. 20,000-00
7. Conveyance Rs. 5,000-00
8. Attendant Charges Rs. 5,000-00 Food, Nourishment &
9. Rs. 5,000-00 Diet charges TOTAL Rs. 3,74,110-00
39. In all, the Petitioner is entitled for total compensation of Rupees 3,74,110/- 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.
37 M.V.C.NO.1313/2015(SCCH-7)
40. While answering Issue No.1, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the driver of the offending Omni Car bearing Registration No.KA- 01-P-2956 in the commission of the said road traffic accident and there was no negligence on the part of the Petitioner in driving the Auto Rickshaw bearing Registration No.KA-03-D-670 in the commission of the said road traffic accident and the offending Omni Car bearing Registration No.KA-01-P-2956 as well as its driver are very much involved in the said road traffic accident, which caused to the Petitioner, wherein, the Petitioner had sustained one simple injury and one grievous injury. The Petitioner in the cause title of the petition has mentioned that, the Respondent No.2 is an Insurer and the Policy No.67190231140200001622 and validity from 16.06.2014 to 15.06.2015. The Respondent No.2 in its written statement has clearly admitted the issuance of the policy bearing No.67190231140200001622 covering the period from 16.06.2014 to 15.06.2015 in respect Maruthi Van bearing Registration No.KA- 01-P-2956 in favour of the Respondent No.1 and their liability if any, is subject to the terms and conditions of the policy and provisions of the Motor Vehicles Act and if the vehicle has been driven by a person, who did not possess valid and effective driving licence to drive the same at the time of alleged accident, it is not liable to indemnify the Insured Respondent No.1. The R.W.2, who is an Administrative Officer of the Respondent No.2 has also clearly stated in his examination-in-chief that, they have issued the liability only policy bearing No.671902311402000001622 covering the period from 16.05.2014 to 15.05.2015 in favour of the Respondent No.1 in respect of the Maruthi Omini bearing Registration No.KA-01-P-2956 and the liability is as per the terms 38 M.V.C.NO.1313/2015 (SCCH-7) and conditions of the policy and provisions of the Motor Vehicles Act. Further, the R.W.2 has stated in his cross-examination that, at the time of accident, the Insurance Policy relating to the offending vehicle was valid. The Respondent No.2 has produced Ex.R.4 Insurance Policy along with terms and conditions. The R.W.1, who is an ARTO, Koramangala has produced certified copy of B-Register Extract relating to vehicle bearing Registration No.KA-01-P-2956. Further, there is no allegation leveled by the Investigating Officer in Ex.P.5 Charge Sheet as against the driver of the offending Maruthi Omini Car bearing Registration No.KA- 01-P-2956 that, he was not having a valid and effective driving licence to drive such class of offending Maruthi Omini Car at the time of accident. From the said material evidence, which is very much available on record, it is clearly proved that, at the time of accident, the Petitioner was a R.C. Owner and the Respondent No.2 was an Insurer of the offending Maruthi Omini bearing Registration No.KA-01-P-2956 and its Insurance Policy was valid, which covers the date of accident and the driver of the offending Maruthi Omini Car was having a valid and effective driving licence to drive such class of offending Maruthi Omini Car at the time of accident.
41. The Respondent No.2 has seriously disputed about the validity of the Fitness Certificate and Registration Certificate relating to the offending Maruthi Omini bearing Registration No.KA-01-P-2956 as on the date of accident. In this regard, the R.W.2 has stated in his examination-in-chief that, as on the date of accident, the insured vehicle is not having Fitness Certificate to run vehicle on road and the same is expired and in the absence of the Fitness Certificate and Registration Certificate itself is invalid 39 M.V.C.NO.1313/2015 (SCCH-7) and the Respondent No.1 has violated the Motor Vehicles Act and policy conditions and based on the same, the petition is liable to be dismissed as against the Company. He has further stated that, as per the terms and conditions of the policy, the Respondent No.1 willfully fly the vehicle on road after expiring the R.C. without renewing the said R.C./Fitness Certificate and violated the terms and conditions of the Motor Vehicles Act and hence, the Respondent No.2 is not liable to indemnify the Insured/Respondent No.1 and the Respondent No.2 is not liable to pay any compensation to the Petitioner and the petition is liable to be dismissed as against their Company and if at all any compensation is awarded by this Hon'ble Court, it is the Respondent No.1/owner of the Maruthi Omini Car, who would be liable to pay the compensation in their personal capacity. The Respondent No.2 has also produced Ex.R.5 Postal Acknowledgement, Ex.R.6 Office copy of Letter dated 28.04.2015, Ex.R.7 Office copy of Letter dated 04.04.2016 along with Postal Order Counter File, Ex.R.8 Postal Acknowledgement, Ex.R.9 Office copy of Letter dated 11.08.2016 along with Postal Order Counter File, Ex.R.10 MVI Report, Ex.R.11 Letter dated 07.05.2016 issued by RTO, Electronic City, Bengaluru and Ex.R.12 Opened Postal Cover. Further, the Respondent No.2 has examined the ARTO, Koramangala as R.W.1, who by producing Ex.R.2 Certified copy of B-Register Extract relating to vehicle bearing Registration No.KA- 01-P-2956, has stated in his examination-in-chief that, the vehicle bearing Registration No.KA-01-P-2956 as shown in Ex.R.2 B- Register Extract is a private vehicle and non-transport vehicle and its period of validity is from 10.07.1998 to 09.07.2013, i.e., for 15 years and the Register Owner of the said vehicle initially was not renewed the said period after its closer and thereafter, on 40 M.V.C.NO.1313/2015 (SCCH-7) 12.06.2015, its Owner re-register the said vehicle with valid up to 11.06.2020, i.e., for a period of 5 years and on 30.01.2015, the R.C. relating to the said vehicle was not valid and after 15 years, the registration of the vehicle is not valid, but, the Owner of the vehicle reregister the said vehicle, then only, it is valid from the date of re-registration till its valid period, i.e., for the period of 5 years and when the vehicle is not having valid Certificate of Fitness, during that period, the vehicle cannot be flying on the road and in the absence of the certificate of fitness, the Registration Certificate relating to the said vehicle is invalid.
42. From the above said oral evidence of R.W.1 and R.W.2 as well as the contents of Ex.R.2, it appears that, the Registration Certificate and Fitness Certificate relating to the offending Maruthi Omini bearing Registration No.KA-01-P-2956 was valid from 10.07.1998 to 09.07.2013, i.e., for a period of 15 years, but, as on the date of accident, i.e., on 30.01.2015, the Registration Certificate and Fitness Certificate of the offending Omini Car was not valid, which is already expired and after the accident, the Registration Certificate and Fitness Certificate of the offending Omini Car was re-registered for the period from 12.06.2015 to 11.06.2020, i.e., for a period of 5 years and nearly 2 years, the offending Maruthi Car was not having a Fitness Certificate and Registration Certificate, i.e., from 10.07.2013 to 11.06.2015.
43. But, based on the said grounds that, as on the date of accident, the offending Maruthi Omini bearing Registration No.KA- 01-P-2956 was not having a valid Registration Certificate and Fitness Certificate, the Respondent No.2 cannot be escaped from his liability, which involved in the present petition by contending 41 M.V.C.NO.1313/2015 (SCCH-7) that, the Respondent No.1, who is a R.C. Owner of the offending Car has violated the terms and conditions of the admitted Ex.R.4 Insurance Policy and as such, he is not liable to indemnify the Respondent No.1, as, it was up to the Respondent No.2 to verify the validity of the Registration Certificate and Fitness Certificate of the vehicle, on which, the R.C. Owner obtained the Insurance Policy, at the time of issuance of Insurance Policy. Further, the Respondent No.2 in his cross-examination has clearly stated that, after verifying the R.C. relating to the offending vehicle, they have issued Insurance Policy. From this, it appears that, at the time of issuance of Ex.R.4 Insurance Policy in favour of the Respondent No.1 in respect of the offending Maruthi Omini bearing Registration No.KA-01-P-2956, the Respondent No.2 has verified all the vehicular documents relating to the offending Maruthi Omini bearing Registration No.KA-01-P-2956 and even though, he had knowledge about expiry of the period of Registration Certificate and Fitness Certificate relating to the said offending Maruthi Omini Car, it had issued Ex.R.4 Insurance Policy in favour of the Respondent No.1. Therefore, the mistake is committed by the Respondent No.2 in issuance of Ex.R.4 Insurance Policy in favour of the Respondent No.1 relating to the offending Maruthi Omini bearing Registration No.KA-01-P-2956 even though it was not having a valid Registration Certificate and Fitness Certificate as on the date of issuance of the Insurance Policy. Inspite of knowledge that the Registration Certificate and Fitness Certificate of the offending Maruthi Omini bearing Registration No.KA-01-P-2956 was expired on 09.07.2013, the Respondent No.2 had issued Ex.R.4 Insurance Policy in favour of the Respondent No.1 in respect of the said offending Maruthi Omini Car, covering the date of expiry of the Registration 42 M.V.C.NO.1313/2015 (SCCH-7) Certificate and Fitness Certificate. Further, the R.W.1 in his cross- examination has stated that, at the time of re-registration of the said vehicle, it had no any mechanical defects and the said vehicle is having valid lifetime tax and at the time of re-registration, the said vehicle was in good condition and now, the certificate of registration relating to the said vehicle is valid up to 2020. From this, it appears that, the condition of the offending Maruthi Omini Car was good at the time of issuance of Ex.R.4 Insurance Policy by the Respondent No.2 in favour of the Respondent No.1. Further, without verify carefully the Registration Certificate and Fitness Certificate of the offending Maruthi Omini bearing Registration No.KA-01-P-2956, the Respondent No.2 has blindly issued Ex.R.4 Insurance Policy in favour of the Respondent No.1. More so, the Petitioner is a 3rd party to the said contract of insurance, which was taken place in between the Respondents No.1 and 2 in respect of issuance of Ex.R.4 Insurance Policy. Therefore, the Respondent No.2 cannot be escaped from his liability to pay compensation and interest to the Petitioner on the grounds that, at the time of accident, the offending Maruthi Omini bearing Registration No.KA-01-P-2956 was not having a valid Registration Certificate and Fitness Certificate and as such, the Respondent No.1 has violated the terms and conditions of the Ex.R.4 Insurance Policy.
44. In view of the above said reasons, this Tribunal has come to the conclusion that, the Respondent No.1 being a R.C. Owner and the Respondent No.2 being an Insurer of the offending Maruthi Omini bearing Registration No.KA-01-P-2956, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since the Respondent No.2 is an Insurer, 43 M.V.C.NO.1313/2015 (SCCH-7) it shall indemnify the Respondent No.1. In view of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioner are aptly applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.2 are not 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, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 3,74,110/-
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.2.
The Respondent No.2 shall deposit the said compensation and interest in 44 M.V.C.NO.1313/2015 (SCCH-7) this Tribunal, within two months from the date of this Order.
In the event of deposit of compensation and interest, 60% shall be released in the name of the Petitioner through account payee cheque, on proper identification.
Remaining 40% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
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 3rd day of March, 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 :-
45 M.V.C.NO.1313/2015(SCCH-7) P.W.1 : Sri. Upendra P.W.2 : Dr. S. Ramachandra
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Panchanama
Ex.P.4 : True copy of MVI Report
Ex.P.5 : True copy of Charge Sheet
Ex.P.6 : True copy of Wound Certificate
Ex.P.7 : Case Summary and Discharge Record
Ex.P.8 : Medical Bills (42 in nos.)
Ex.P.9 : Medical Bills (7 in nos.)
Ex.P.10 : Medical Prescriptions (38 in nos.)
Ex.P.11 : Advance Receipts (3 in nos.)
Ex.P.12 : X-ray Films (3 in nos.)
Ex.P.13 : CD relating to Ex.P.12 X-ray Films
Ex.P.14 : CD relating to CT Scan
Ex.P.14(a) : OPD Book
Ex.P.15 : X-ray Film
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : N. Balakrishnan
R.W.2 : Sushil Tiwai
R.W.3 : Kavitha. S.
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Permit relating to the Auto Rickshaw bearing Registration No.KA-03-D-670 Ex.R.2 : Certified copy of B-Register Extract relating to Vehicle bearing Registration No.KA-01-P-
2956
Ex.R.3 : Authorization Letter dated 25.08.2016
Ex.R.4 : True copy of Insurance Policy along with
Terms and Conditions
Ex.R.5 : Postal Acknowledgment
Ex.R.6 : Office copy of Letter dated 28.04.2015
Ex.R.7 : Office copy of Letter dated 04.04.2015
along with Postal Order Counter File
Ex.R.8 : Postal Acknowledgment
46 M.V.C.NO.1313/2015
(SCCH-7)
Ex.R.9 : Office copy of Letter dated 11.08.2016
along with Postal Order Counter File
Ex.R.10 : True copy of MVI Report
Ex.R.11 : Letter dated 07.05.2016 issued by RTO,
Electronic City, Bangalore
Ex.R.12 : Opened Postal Cover
Ex.R.13 : Authorization Letter dated 23.11.2016
Ex.R.14 : Letter dated 28.11.2016
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.