Bangalore District Court
Intentionally Impleaded It To Harass ... vs No on 18 April, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 18th 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.4588/2014
Master Ajan Pasha, ..... PETITIONER
Aged about 6 years,
S/o. Arif Pasha.
Since minor represented by his
father/natural guardian,
Mr. Arif Pasha,
36 years,
S/o. Saipulla.
Both are R/at No.330,
2nd Cross,
Tippunagar,
Mysore Road,
Chamarajpet,
Bengaluru - 560 018.
(By Sri. Girish, Adv.,)
V/s
1. Mr. Jaweed Ahmed, ..... RESPONDENTS
Major,
S/o. Abdul Manan,
No.91, 5th Cross,
Ummar Nagar Main Road,
Nagwara,
Bangalore - 560 045.
(Owner of Auto Rickshaw bearing
2 M.V.C.NO.4588/2014
(SCCH-7)
Registration No.KA-02-AB-7722)
2. TATA AIG General Insurance
Company Ltd.,
2nd Floor, JP and Devi Jambukeshwar
Arcade,
No.69, Millers Road,
Bengaluru - 560 052.
Represented by the Manager.
(Insurer of Auto Rickshaw bearing
Registration No.KA-02-AB-7722)
(Policy No.015273494600, Valid period
from 28.11.2013 to 27.11.2014)
(R1- Exparte)
(R2- By Sri. S. Maheswara, 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 8,00,000/- with interest at the rate of 12% p.a., from the date of the accident.
2. The brief averments of the Petitioner's case are as follows;
a) On 10.08.2014 at about 6-30 p.m., he along with his father carefully walking on extreme left side of Someshwara Nagar 8th Cross Road, Jayanagar 1st Block, by following all pedestrian manners, at that time, the driver of an Auto Rickshaw bearing Registration No.KA-02-AB-7722 driven the same at high speed, in a rash and negligent manner so as to endanger to the public life and dashed against him and ran over his left leg. Due to impact, 3 M.V.C.NO.4588/2014 (SCCH-7) he has sustained severe injuries to his left leg foot and sustained other injuries.
b) Immediately, he was shifted to Hosmat Hospital, Bengaluru, wherein, X-ray were taken, which revealed crush injury left foot (Degloving injury over dorsum of left foot), extensor tendons foot exposed, toe extension absent for 2nd and 5th toe, dorsalis paedis artery palpable, posterior tibial artery palpable, sensation decreased over 2nd, 3rd and 4th toe and capillary refill present. He was underwent wound debridement left foot on 11.08.2014, wound inspection and dressing left foot on 13.08.2014 and wound debridement + SSG left foot on 18.08.2014 and discharged on 20.08.2014, with an advice to be under regular follow-up treatment and complete bed rest.
c) He has already incurred expenses to the tune of Rupees 1,50,000/- towards treatment, medical expenses, conveyance and nourishment and attendant charges. He is further required to spend substantial amount towards future treatment and medical expenses, viz., follow-up treatment, surgery, physiotherapy and other incidental expenses.
d) At the time of accident, he was aged about 6 years, hale and healthy, brilliant student of 1st Standard at Willington High School, Chamarajpet, Bengaluru. He was very good at sports and active participant of other curricular activities. He is still under treatment and could not resume his schooling till the date.
e) The accident is occurred due to the rash and negligence driving of the Auto Rickshaw bearing Registration No.KA-02-AB-7722. The Wilson Garden Traffic Police have registered a case as against the driver of the said vehicle.
4 M.V.C.NO.4588/2014(SCCH-7)
f) The said Auto Rickshaw is insured with the Respondent No.2, as such, the Owner and Insurer, the Respondents, are liable to pay the compensation under the provisions of the Motor Vehicles Act as special and general damages under the different heads. Hence, this petition.
3. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte on 06.02.2015.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its 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 03.11.2015 passed on I.A.No.II and III, 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 petition is not maintainable either in law or on facts and the same is liable to be dismissed in limine. It has been unnecessarily made as parties to the proceedings though there was no policy of insurance issued to the vehicle in issue as on the date of accident. Hence, the petition is liable to be dismissed for mis-joinder of necessary parties.
b) There was no policy in force as on the date of accident in respect of the Auto Rickshaw bearing Registration No.KA-02- AB-7722 as on the date of the accident, i.e., on 10.08.2014 and the policy particulars in the cause title of the petition bearing 5 M.V.C.NO.4588/2014 (SCCH-7) Policy Number 015273494600 is not issued to Auto Rickshaw bearing Registration No.KA-02-AB-7722.
c) The said policy number has been issued in favour of one Raj Gopal. M. for the Motor Cycle bearing Registration No.TN- 58-AZ-7954 for the period from 12.11.2013 to 11.11.2014, which clearly shows that, the vehicle involved in the accident was not insured with it as on the date of accident, hence, it should not have been made a party to the said proceedings.
d) The Petitioner knowing fully well that, the Auto Rickshaw bearing Registration No.KA-02-AB-7722 was not having a valid policy of insurance as on the date of accident, the Petitioner intentionally impleaded it to harass with dishonest intention. Under these circumstances, the claim petition deserves to be dismissed against it.
e) It has issued a policy in favour of the Respondent No.1 Auto Rickshaw bearing Registration No.KA-02-AB-7722 bearing Policy No.015148115100 for the period from 17.09.2011 to 16.09.2012, however, no policy of insurance has been issued in favour of the Respondent No.1 Auto Rickshaw bearing Registration No.KA-02-AB-7722 as on the date of accident. It would also clearly shows that, the vehicle involved in the accident was not insured with it on the date of accident, as such, it is neither necessary nor proper party for the adjudication of the said claim.
f) In any event, the Petitioner or the Respondent No.1 prove that, it had issued a valid policy of insurance in respect of Auto Rickshaw bearing Registration No.KA-02-AB-7722 as on the date of accident, then, the following defense would arise to it.
6 M.V.C.NO.4588/2014(SCCH-7)
g) Section 134(c) of the Motor Vehicles Act mandates that, the owner of the vehicle is bound to inform in writing with regard to the accident and to submit all vehicular documents including driving licence of the driver and policy particulars, to seek indemnification, however, the Owner of Auto Rickshaw bearing Registration No.KA-02-AB-7722 failed to furnish the said documents.
h) As per Section 158(6) of M.V. Act, 1988, it is a mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned Insurer within 30 days from the date of information, but, the Wilson Garden Traffic Police Station failed to forward the documents and not complied with the statutory demand.
i) The Respondent No.1 required to prove that, there was no violation of the terms and conditions of the policy, the driver of the vehicle was having a valid driving licence to drive the vehicle in issue as on the date of accident and the vehicle was having valid permit to ply and there was valid fitness certificate to the vehicle and it is at liberty to rescue under Section 149(2) of M.V. Act.
j) The alleged accident took place on 10.08.2014, however, the complaint lodged on 14.08.2014, after lapse of 4 days, from the date of alleged accident. The Auto Rickshaw bearing Registration No.KA-02-AB-7722 was falsely implicated by the Petitioner colluding with the Owner of the vehicle and the Police, to get the compensation from it. No valid reasons assigned for the delay in lodging the complaint.
k) The driver of the Auto Rickshaw bearing Registration No.KA-02-AB-7722 was not holding a valid and effective driving 7 M.V.C.NO.4588/2014 (SCCH-7) licence as on the date of the accident and further was not qualified for holding or obtaining such driving licence and further not satisfied the requirements of the Rule 3 of the Central Motor Vehicles Rules, 1989. The Owner of the vehicle knowing fully well that, the driver did not possess a valid and effective driving licence, willfully entrusted his vehicle to the said driver. Further, the vehicle was not having valid permit to fitness to ply as on the date and place of the accident. The Petitioner as well as the Respondent No.1, are called upon to prove the same.
l) The Petitioner has not suffered any injuries as contended in the claim petition and the injuries suffered by him have not resulted in any disability and has to cause any financial loss. The Petitioner has not suffered any earning capacity. As such, the entire claim petition deserves to be dismissed.
m) The quantum of compensation claimed by the Petitioner is an exorbitant and fanciful.
n) It reserves the right to file additional written statement under the changed circumstances of the case.
o) The Petitioner is called upon to prove that, he has not filed any claim petition before any other Court/Tribunal/Forum or at any place.
p) It is not liable to pay any compensation or interest in respect of the claim petition as the Auto Rickshaw bearing No.KA- 02-AB-7722 was not having valid policy of insurance as on the date of accident. Hence, prayed to dismiss the claim petition with costs.
8 M.V.C.NO.4588/2014(SCCH-7)
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 Auto Rickshaw bearing Reg.No.KA-02- 7722 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 has been examined his father, who is his natural guardian as P.W.1 and has also examined two witnesses as P.W.2 and P.W.3 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.18. On the other hand, the Respondent No.2 has examined its Senior Executive Claims as R.W.2 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.3 and Ex.R.4. It is pertinent to note here that, initially, the Respondent No.2 had examined the witness as R.W.1 and had placed reliance upon Ex.R.1 and Ex.R.2 and later, as per the Order dated 21.09.2016 passed on I.A.No.VI filed by the Respondent No.2, the evidence of R.W.1 and Ex.R.1 and Ex.R.2 are discarded. Hence, the evidence of R.W.1 and Ex.R.1 and Ex.R.2 are not taken into for consideration in the following discussion. During the course of cross-examination of P.W.3, Ex.C.1 and Ex.C.2 are marked.
9 M.V.C.NO.4588/2014(SCCH-7)
8. Heard the arguments. The Learned Counsels appearing for the Petitioner and the Respondent No.2 have filed the written arguments.
9. In support of the submission, the Learned Counsel appearing for the Petitioner Sri. Girish has placed reliance upon the decisions reported in, 2012 (3) T.A.C. 36 PATNA HIGH COURT (New India Assurance Co. Ltd., Varanasi, U.P. and Another V/s. Md. Khalil Nai and Others), wherein, it is observed that, Motor Vehicle Act, 1988, Section 147, 166 and 173 - Motor insurance - Liability of Insurance Company - Adjudication as such in summary proceedings - scope - Tribunal found offending vehicle insured at the time of accident and held Insurance Company liable to pay compensation - plea of Insurance Company that, cover note was forged, fabricated and fake document -
held, Tribunal in a summary proceeding could not have decided plea raised by Insurance Company to hold that, insurance cover was forged, fabricated and fake -
rightly held that, Insurance Company may take legal action, if any, against owner and driver of vehicle.
10. In support of the submission, the Learned Counsel appearing for the Respondent No.2 Sri. S. Maheshwara has placed reliance upon the decisions reported in,
i) ILR 1997 KAR 1061 (The Oriental Insurance Company Ltd., V/s. N.S. Devaraja and Others), wherein, it is observed that, 10 M.V.C.NO.4588/2014 (SCCH-7) (B) Evidence Act, 1872 Section 102 -
And Section 110 - of the Motor Vehicles Act, 1939.
When the Insurance Company stated in its objection statement that, the vehicle was not insured, the burden of providing that, the vehicle was insured lay either with the claimants or the owner of vehicle.
11. When I so observe, with reference to the doctrine of burden of proof, I find support from the Division Bench Decision of this Court in M/s New India Assurance Company Ltd., V/s. Narayan Balaji Kulkarni and Others decided on 11th January 1990 by Division Bench consisting of Hon'ble Mr. Justice M.Rama Jois and Hon'ble Mr. Justice S.R. Rajashekara Murthy. In that, case, the Tribunal had observed as under.
"Although Respondent No.3 contended in the objection statement that, the vehicle is not insured with the company, that, contention does not appear to have been pursued during the enquiry because no questions are put to the Petitioner in that, regard much less none of behalf of the Respondent s has entered the witness box to deny that, the vehicle is not insured. Therefore, the Respondent NO.3 is liable to reimburse the Respondent No.2 regarding the payment of compensation".
12. The Division Bench disapproved such an approach of the Tribunal in that, case and it observed as under:
"In our opinion the approach made by the Tribunal is totally erroneous. The Insurance Company cannot be expected to prove the negative. When the Insurance Company stated in its objection statement that, the vehicle was not insured with the 11 M.V.C.NO.4588/2014 (SCCH-7) Insurance Company, the burden of proving that, the vehicle was insured with the appellant Insurance Company lay either on the Petitioner claimant or on the owner of the vehicle. If really, the Insurance Policy was in existence nothing prevented the owner of the vehicle to produce a copy of the Insurance Policy. It was also open for the Petitioner to secure information from the Motor Vehicles Department as to whether the vehicle had been insured and placed it before the Tribunal. In the absence of any such evidence adduced either on behalf of the claimant - Petitioner or on behalf of the owner of the vehicle, the Tribunal should have proceeded on the basis that, the plea taken by the Insurance Company in the objections statement was correct."
ii) ILR 1997 KAR 1980 (The Oriental Insurance Company Ltd., V/s. Chikkegowda and Others), wherein, it is observed that, Motor Vehicles Act, 1988 (Central Act No.58 of 1988) - Section 149 - In cases where Insurance Company disputes its liability on the ground that, the insurance particulars are not given, it is duty of the claimants or the owner of the vehicle to furnish all such particulars to show that, the offending vehicle was insured on the relevant date. It is not for the Insurance Company to prove that, the vehicle is not insured with them.
4. Under the Motor vehicles Act of 1939 as well as 1988 the registering authority or the Police Officer is required to furnish the particulars of the vehicle involved in the accident and as such it is not as if the insurance particulars cannot be secured at all. When once the Insurance 12 M.V.C.NO.4588/2014 (SCCH-7) Company disputes its liability to indemnify the liability of the owner of the vehicle on the ground that, the insurance particulars are not given, it is for the claimants or the owner of the vehicle to place material on record to indicate that, the vehicle was insured on the relevant date. This court in New India Assurance Company Limited V/s.
Narayan Balaji Kulkarni And Others has held that, it is not for the Insurance Company to prove that, the vehicle is not insured with them and that, it is either for the claimants or the owner of the vehicle to prove that, the vehicle was actually insured with the company when the fact of insurance was disputed.
iii) 2007 ACJ 1284 SUPREME COURT OF INDIA AT NEW DELHI (Oriental Insurance Company Ltd., V/s. Meena Variyal and Others), wherein, it is observed that,
9. Before we produced to consider the man aspect arising for decision in this appeal, we would like to make certain general observations. It may be true that, the Motor vehicles Act, insofar as it relates to claims for compensation arising out of accidents, is a beneficent piece of legislation. It may also be true that, subject to the rules made in that, behalf, the Tribunal may follow a summary procedure while dealing with a claim. That does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all the basic principles of law in determining the claim for compensation.
11. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
13 M.V.C.NO.4588/2014
(SCCH-7)
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 2,54,373/- with
interest at the rate of 9%
p.a. (excluding future
medical expenses of
Rupees 10,000/-) from the
date of the petition till the
date of payment, from the
Respondent No.2.
Issue No.3 : As per the final Order,
for the following;
REASONS
12. ISSUE NO.1 :- The P.W.1, who is the father as well
as the natural guardian of the minor Petitioner, has stated in his examination-in-chief that, on 04.02.2013, he and his son, who is a Petitioner, were carefully walking on the extreme left side of Someshwar Nagar, 8th Cross Road, Jayanagar 1st Block, by following all pedestrian manners, at that time, the driver of an Auto Rickshaw bearing Registration No.KA-02-AB-7722 driven the same at high speed, in a rash and negligent manner so as to endanger to the public life and dashed to his son and ran over his left leg and due to impact, his son has sustained severe injuries to his left leg foot and sustained other injuries all over the body. He has further stated that, immediately, his son was shifted to Hosmat Hospital, Bengaluru, wherein, X-ray were taken, which revealed crush injury left foot degloving injury over dorsum of left foot, extensor tendons foot exposed, toe extension absent for 2nd and 5th toe, dorsalis paedis artery palpable, posterior tibial artery palapable, sensation decresed over 2nd, 3rd and 4th toe and 14 M.V.C.NO.4588/2014 (SCCH-7) capillary refill present. He has further stated that, the accident occurred due to the sole act of rash and negligent driving of the driver of the Auto Rickshaw bearing Registration No.KA-02-AB- 7722 and the Wilson Garden Traffic Police have filed the Charge Sheet as against the driver of the said vehicle.
13. It is pertinent to note here that, though the accident was taken place on 10.08.2014 at 6.30 p.m., the P.W.1, who is a father of the Petitioner, has lodged a complaint on 14.08.2017 at 3-00 p.m., in respect of the accident caused to his son, i.e., the minor Petitioner, which disclosed that, there is 4 days delay in lodging the complaint. Further, the Petitioner has not produced the MLC Register and Police Intimation. Further, the Petitioner has not examined the independent eye witness of the accident in question. Further, as per Ex.P.5 MVI Report, no damages caused to the Auto Rickshaw bearing Registration No.KA-02-AB-7722. Further, it is clear from the contents of Ex.P.3 Spot Hand Sketch that, the accident was taken place, where there was no pedestrian cross or zebra cross, i.e., in the 'T' Junction Road. Further, the P.W.1 in his cross-examination has stated that, he has lodged a complaint before the Police about the accident caused to his minor son on the next day of the accident and he does not know what had happened in the criminal case and he has shown the accidental spot to the Police on the next day of the accident.
14. But, based on the said grounds that, there is 4 days delay in lodging the complaint in respect of the accident caused to the minor Petitioner, non-production of MLC Register and Police Intimation by the Petitioner, non-examination of the independent eye witness by the Petitioner in the present petition, no damages caused to the offending Auto Rickshaw in the alleged accident and 15 M.V.C.NO.4588/2014 (SCCH-7) there was no pedestrian or zebra cross on the accidental spot to cross the accidental road, the above said oral version of P.W.1 cannot be thrown away and it cannot be said that, there was no negligence on the part of the driver of the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 in the commission of the said road traffic accident, but, the entire negligence is on the part of the Petitioner as he was crossing the accidental road, where there was no pedestrian or zebra cross, as, to consider his case as well as oral version of P.W.1, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanama, Ex.P.5 MVI Report, Ex.P.6 Charge Sheet, Ex.P.7 Wound Certificate, Ex.P.8 Discharge Summary, Ex.P.9 Photographs 3 in numbers, Ex.P.10 CD relating to Ex.P.9 Photographs and has also produced Ex.P.15 Inpatient Record and Ex.P.16 X-ray Films 2 in numbers with Report through P.W.2, who is an Orthopedic Surgeon, which clearly disclosed that, though the Petitioner was crossed the accidental road along with his father, i.e., the P.W.1, where there was no pedestrian cross or zebra cross, he has almost all crossed the accidental road at the time of accident and the offending Auto Rickshaw came on the opposite direction from right side towards left side without observing the Petitioner and if the driver of the offending Auto Rickshaw could have taken a little care while driving it at the time of accident, by observing the Petitioner, who was crossing the road, he could have avoided the said road traffic accident, which caused to the Petitioner and at the time of accident, the Petitioner was 7 years old, i.e., minor and in the said road traffic accident, the Petitioner had sustained crush injury on his left foot, which is grievous in nature and immediately after the accident, he was admitted in Hosmat Hospital on 10.08.2014 at 8-45 p.m., itself and by admitting as an inpatient from 10.08.2014 to 20.08.2014, 16 M.V.C.NO.4588/2014 (SCCH-7) i.e., for 11 days, he took treatment to the said accidental injuries in the said Hospital, which is clear from the following discussion. Furthermore, though the Respondent No.2 has examined its Senior Executive Claim Legal as R.W.2, who has not stated anything about the accident in question, in his examination-in- chief. Further, the P.W.1 in his cross-examination has stated that, immediately after the accident, his son was shifted to Hosmat Hospital and he has informed to the Hospital Authority how the accident caused to his minor son and after the accident, his son was shifted to the Hospital through the said offending Auto Rickshaw by the Respondent No.1 himself and the colour of the offending Auto Rickshaw was black with yellow top and he has lodged the complaint at Police Station itself and in the alleged accident, his son had not sustained fracture injury. The said evidence of P.W.1 is clearly corroborated with the contents of the above referred documents as well as his oral version, which clearly stated by him in his examination-in-chief. Furthermore, the P.W.1 has clearly denied the suggestions put to him by the Respondent No.2 during the course of cross-examination that, the Respondent No.1 is his relative and even though the offending Auto Rickshaw not at all involved in the alleged accident and not caused the accident to his son, in collusion with the Respondent No.1 and Police, four days after the accident, he has lodged a false complaint and in the alleged accident, his son had sustained only simple injuries. From this, it appears that, though the P.W.1 has been cross-examined by the Respondent No.2, nothing has been elicited from his mouth to consider its specific defence. Further, the Respondent No.1, who was a R.C. Owner-cum-Driver of the offending Auto Rickshaw is placed as exparte, which disclosed that, he has indirectly admitted the entire case made out by the Petitioner as against him in the present petition. From this, it is 17 M.V.C.NO.4588/2014 (SCCH-7) made crystal clear that, nothing is available on record on behalf of the Respondents to deny or to discard the said evidence both oral and documentary, adduced by the Petitioner to consider the accident in question, which caused to him by the Respondent No.1 while driving the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722.
15. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the P.W.1, who is the father of the Petitioner, who is an eye witness of the accident in question has lodged Ex.P.2 Complaint before the Wilson Garden Traffic Police as against the driver of the offending Auto Rickshaw bearing Registration No.KA- 02-AB-7722 by alleging that, on 10.08.2014 at 6-30 p.m., when he and his son, i.e., the Petitioner, were walking by the extreme side of the road, near 8th Cross, Someshwaranagar Main Road, from Byrasandra towards Hosuru Road, the said Auto Rickshaw came with very high speed by its driver and dashed to his son and due to the said impact, he fell down on the road and left wheel of the Auto Rickshaw ran over on the left leg of his son and due to which, his son had sustained sever grievous injuries and thereafter, with the driver of the said offending Auto Rickshaw, he shifted his son to Hosmat Hospital and the cause of the accident is due to negligence on the part of the driver of the offending Auto Rickshaw and as such, he prayed to take necessary legal action as against the driver of the offending Auto Rickshaw and the name of the driver of the Auto Rickshaw is Arif Pasha and since, he was in the Hospital to look after his son, the delay is caused in lodging the complaint and based on the said Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Auto Rickshaw for the offences punishable under Section 279 and 337 of IPC under Crime No.44/2014. The reason 18 M.V.C.NO.4588/2014 (SCCH-7) for delay in lodging the complaint, i.e., Hospitalization immediately after the accident, is clearly mentioned in the Ex.P.2 Complaint itself.
16. The contents of Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanama and Ex.P.5 MVI Report disclosed that, when the Petitioner was walking 5 feet away from the edge of the accidental road on its left side, the said road traffic accident was taken place by the Respondent No.1, who was a driver of the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722, who came from right side towards left side and dashed to the Petitioner and the entire negligence is on the part of the Respondent No.1 in driving the offending Auto Rickshaw and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident, as, he was 6 years old and he was walking by the side of the accidental road. It is also clearly mentioned in Ex.P.5 MVI Report that, the said accident was not occurred due to any mechanical defects of the said offending Auto Rickshaw.
17. The contents of Ex.P.7 Wound Certificate disclosed that, the Petitioner was brought to Hosmat Hospital accompanied with his father, i.e., the P.W.1, for report as to certain injuries said to have been caused due to alleged history of road traffic accident on 10.08.2014 at 7-15 p.m., and he was examined on 10.08.2014 at 8-45 p.m., and during the course of examination, it is found that, he had sustained crush injury left foot, which is grievous in nature and by admitting as an inpatient from 10.08.2014 to 18.08.2014, i.e., for 9 days, he took treatment to the said accidental injuries in the said Hospital. From the contents of Ex.P.7 Wound Certificate, it is clearly proved that, immediately after the accident, both the Petitioner and his father, i.e., the 19 M.V.C.NO.4588/2014 (SCCH-7) P.W.1, rushed to the Hospital to give treatment to the accidental injury to the Petitioner, which caused in the road traffic accident.
18. The contents of Ex.P.8 Discharge Summary, Ex.P.9 Photographs, Ex.P.10 CD relating to Ex.P.9 Photographs, Ex.P.15 Inpatient Record and Ex.P.16 X-ray Films 2 in numbers with Report clearly disclosed that, with a alleged history of road traffic accident, the Petitioner brought to Hosmat Hospital and on enquiry, it is found that, he was standing near Road at Someshwaranagar, Auto ran over left foot on 10.08.2014 at 7-15 p.m., and sustained injury to left foot and he was admitted in the said Hospital on 10.08.2014 to take treatment to the said accidental injury and during the course of treatment, it is finally diagnosed crush injury left foot and by admitting as an inpatient from 10.08.2014 to 20.08.2014, i.e., for 11 days, he took treatment to the said accidental injuries in the said Hospital.
19. The P.W.2 has stated that, the Petitioner had an alleged road traffic accident at 6-30 p.m., on 10.08.2014 at Someshwaranagar and the Petitioner was initially treated at local Hospital and he was brought to Hosmat Hospital at 8-45 p.m., on 10.08.2014 and he had the injuries, i.e., severe crushing and degloving injury - left foot with complete loss of skin and muscles over the dorsum of the left foot with expose of all the tendons and the date of first admission on 10.08.2014 and date of first discharge on 20.08.2014.
20. From the said medical evidence, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained crush injury on his left foot, i.e., grievous in nature and by admitting as an inpatient from 10.08.2014 to 20.08.2014, i.e., for 20 M.V.C.NO.4588/2014 (SCCH-7) 11 days, he took treatment to the said accidental injuries at Hosmat Hospital.
21. The contents of Ex.P.6 Charge Sheet 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 Auto Rickshaw bearing Registration No.KA-02-AB-7722 by its driver, i.e., the Respondent No.1, the said road traffic accident was taken place on 10.08.2014 at 6-30 p.m., near 8th Cross, Someshwaranagar Main Road, which dashed to the Petitioner, who was walking by the side of the accidental road along with his father and due to the said impact, the Petitioner fell down and sustained severe grievous injury and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the Respondent No.1 for the offences punishable under Section 279 and 338 of IPC. There is no allegation leveled by the Investigating Officer in Ex.P.6 charge sheet as against the Petitioner about his negligence in the commission of the said road traffic accident. Furthermore, at the time of accident, the Petitioner was a minor of 7 years old and therefore, no negligence can be attributed on his part.
22. From the above said material evidence, both oral and documentary, it is clearly proved that, due to very high speed, rash and negligent manner of driving of the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 by its driver, i.e., the Respondent No.1 itself, the said road traffic accident was taken place to the Petitioner and the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 as well as its driver, i.e., the Respondent No.1, are very much involved in the said road traffic accident, wherein, the Petitioner had sustained one 21 M.V.C.NO.4588/2014 (SCCH-7) grievous injury. Accordingly, I answered Issue No.1 in the Affirmative.
23. ISSUE NO.2 :- The P.W.1 has stated that, at the time of accident, his son was hale and healthy and aged about 6 years. The P.W.1 has produced Ex.P.12 Bonafide Certificate dated 06.11.2014 relating to the Petitioner issued by the Willington English School, which disclosed that, the date of birth of the Petitioner is on 11.01.2008. The date of accident is on 10.08.2014. From the said dates, it appears that, at the time of accident, the Petitioner was 7 year old. Hence, the age of the Petitioner is considered as 7 years at the time of accident.
24. The P.W.1 has stated that, his son was brilliant student of 1st Standard at Willington High School, Chamarajpet, Bengaluru. As this Tribunal has already observed about the production of Ex.P.12 Bonafide Certificate dated 06.11.2014 issued by the Willington English School, by the Petitioner. It is clearly mentioned in Ex.P.12 Bonafide Certificate that, at the time of accident, the Petitioner was studying in 1st Standard. Further, at the time of accident, the Petitioner was 7 years old. Further, the P.W.1 in his cross-examination has also clearly stated that, at the time of accident, his son was studying in 1st Standard. From this material evidence, it is clearly proved that, at the time of accident, the Petitioner was a student studying in 1st Standard and as such, he is a non-earning member.
25. The P.W.1 has stated that, his son was underwent wound debridement left foot on 11.08.2014, wound inspection and dressing left foot on 13.08.2014 and wound debridement + SSG left foot on 18.08.2014 and discharged on 20.08.2014, with an 22 M.V.C.NO.4588/2014 (SCCH-7) advice to be under regular follow-up treatment and complete bed rest. He has further stated that, after discharge from the Hospital as per the advice of the Doctors, his son is taking regular follow- up and physiotherapy treatment till the date. He has further stated that, his son is still under regular follow-up treatment. The P.W.2 has stated that, on 11.08.2014, wound debridement left foot was done, on 13.08.2014 sound inspection and dressing left foot was done and on 18.08.2014 wound debridement and split skin grating was done. He has further stated that, the wounds have healed and the Petitioner has a disfigured left foot with a skin graft over the dorsum of the left foot with numbness over the dorsum of the left foot with numbness over the grafted skin. The P.W.2 has produced Ex.P.14 Outpatient Record. While answering Issue No.1, based on the contents of Ex.P.7 Wound Certificate, Ex.P.8 Discharge Summary, Ex.P.9 Photographs, Ex.P.10 CD relating to Ex.P.9 Photographs, Ex.P.15 Inpatient Record and Ex.P.16 X-ray Films with Report, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained crush injury on his left foot, which is grievous in nature and immediately after the accident, he was brought to Hosmat Hospital on 10.08.2014 at 8-45 p.m., by admitting as an inpatient from 10.08.2014 to 20.08.2014, i.e., for 11 days, he took treatment to the said accidental injuries in the said Hospital. It is clearly mentioned in Ex.P.8 Discharge Summary that, during the course of treatment, wound debridement left foot done on 11.08.2014, wound inspection and dressing left foot done on 13.08.2014 and wound debridement + SSG left foot done on 18.08.2014. No doubt, it is not mentioned in Ex.P.8 Discharge Summary about the advice of the treated Doctor at the time of discharge to the Petitioner to take follow-up treatment to the said accidental injury. But, it no way affect to 23 M.V.C.NO.4588/2014 (SCCH-7) consider the case of the Petitioner in respect of the line of treatment and follow-up treatment taken by him to the said accidental injury even after the discharge from the Hospital, as, in the said road traffic accident, the Petitioner had sustained crush injury on his left foot and he was 7 years old at the time of accident and as such, he is very much required the regular follow- up treatment to the said accidental injuries even after discharge from the Hospital. Further, through P.W.2, the Petitioner has produced Ex.P.14 Outpatient Record. Therefore, the nature of the injury sustained by the Petitioner in the said road traffic accident, the line of treatment taken by the Petitioner to the said accidental injury, the length of treatment and follow-up treatment as stated by the P.W.1 and P.W.2 can very well be believed and accept.
26. The P.W.1 has stated that, his son was very good at studies and sports and active participant of other curricular activities and his son is still under treatment and could not resume his schooling till the date. He has further stated that, inspite of availing best available medical treatment, the accidental injuries have resulted in permanent physical disabilities and now his son walks with limping, suffering from severe pain in left foot and ankle, movements of toes and ankle is totally restricted and painful, discharging wound is present, stiffness is developed in his left leg, totally left leg is disfigured and there is ugly scars, unable to play and participate in sports and these disabilities are affecting his day to day activities and disfigurement of left leg will affect his future.
27. The P.W.2 has stated that, the Petitioner was assessed for disability on 13.07.2015 and 03.10.2015 and he was difficulty in running, playing, difficulty in squatting, kneeling and sitting 24 M.V.C.NO.4588/2014 (SCCH-7) cross-legged and he says that, he has stiffness of his left ankle and disfiguration, itching and numbness over the top of his left foot and he develops pain and swelling on prolonged walking and he has difficulty climbing stairs or slopes. By considering the mobility component in respect of the left ankle, right ankle, stability component and by using the combined values chart and the standard formula and with reference to the standard manuals, the P.W.2 has opined that, total left lower limb disability is 37% and total whole body disability is 13%. He has further stated that, the findings mentioned in the disability assessed correlate with the problems mentioned by the Petitioner in the problem statement and the Petitioner needs stockings and the Petitioner may develop contracture of his left foot as he grows.
28. But, based on the said oral evidence of P.W.1 and P.W.2, coupled with the contents of the above referred all the medical documents, it cannot be believed and accept that, due to the said accidental injury, the Petitioner is suffering from whole body disability of 13%, as, the P.W.2 is not a personally treated Doctor and the Petitioner has not examined the treated Doctor and in this regard, the P.W.2 has clearly stated in his cross- examination that, he has not treated the Petitioner and Dr. N.K. Deepu has treated the Petitioner and he is specialized in Plastic Surgery. Further, by considering the age and nature of work of the Petitioner, who was a minor, the P.W.2 has not specifically assessed the permanent physical and functional disability of the Petitioner. Further, the Petitioner has not produced the disability certificate either issued by the treated Doctor or P.W.2 or any competent Doctor. Further, the P.W.2 in his cross-examination has stated that, the Petitioner had not sustained any fracture injury and now the injuries are healed. Further, the P.W.1 in his 25 M.V.C.NO.4588/2014 (SCCH-7) cross-examination has stated that, at the time of accident, his son was studying in 1st standard and now he is studying in 2nd Standard. From the said evidence of P.W.1 and P.W.2, it is clearly proved that, even though the Petitioner had sustained crush injury on his left foot, it does not come in the way of the Petitioner to continue his education. Further, at the time of accident, the Petitioner was 7 years old, i.e., tender age and as such, the said extent of disability will be definitely reduced in due course of time. Hence, the said extent of 13% whole body disability as stated by the P.W.2, is on higher side and as such, it cannot be believed and accept.
29. However, in the said road traffic accident, the Petitioner had sustained crush injury on his left foot and he was 7 years old at the time of accident and by admitting as an inpatient totally for 11 days, he took treatment to the said accidental injuries at Hosmat Hospital and now he is going to school without any disturbance, by considering all these material facts, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 10% to the whole body, which is believable and acceptable one. Hence, the Petitioner is entitled for compensation under the following heads.
30. Due to the said road traffic accident, as per Ex.P.7 Wound Certificate, the Petitioner had sustained one grievous injury. At the time of accident, the Petitioner was 7 years old. Further, the Petitioner is suffering from permanent physical and functional disability of 10% to the whole body due to the accidental injury. Hence, the Petitioner has to suffer future unhappiness due to the said injury in his tender age.
26 M.V.C.NO.4588/2014(SCCH-7)
31. In the decision reported in 2013 ACJ 2445 (Mallikarjun V/s. Divisional Manager, National Insurance Company Ltd.,), the assessment of compensation in case of children suffering disability is considered as Rupees 1,00,000/- for permanent disability up to 10%. As this Tribunal has already come to the conclusion that, due to the accidental injury, the Petitioner, who was a minor of 7 years at the time of accident and as such, he is a non-earning member and he is suffering from permanent physical and functional disability of 10% to the whole body. Hence, the Petitioner is entitled for Rupees 1,00,000/- towards pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, discomfort and loss of amenities in life on account of permanent disability.
32. The P.W.1 has stated that, he has taken his son to Hospital around 30 to 35 times by spending Rupees 500/- per visit towards conveyance and other incidental expenses. He has further stated that, due to the accidental injuries, his son was completely immobilized and he has already spent Rupees 1,50,000/- towards conveyance, attendant charges, treatment and medical expenses. In this regard, the Petitioner has produced Ex.P.13 Medical Bills 27 in numbers, which is amounting of Rupees 1,30,758-02. The P.W.1 has stated in his cross- examination that, by way of cash, he has paid the medical expenses to the Hospital and he never paid the medical expenses to the Hospital by way of cheque. It is pertinent to note here that, Serial No.1 of Ex.P.13 Medical Bills is amounting of Rupees 1,26,000/-, which is the advance amount, but, the actual amount is of Rupees 1,09,615/-. Hence, after deduction of Rupees 1,09,615/- in Rupees 1,26,000/-, the balance amount comes to 27 M.V.C.NO.4588/2014 (SCCH-7) Rupees 16,385/-. Therefore, the said excess amount of Rupees 16,385/- can be deducted in the amount of Rupees 1,26,000/- shown in Serial No.1. After deduction of Rupees 16,385/- in total amount of Rupees 1,30,758-02 of Ex.P.13 Medical Bills, the actual amount comes to Rupees 1,14,373-02. Therefore, a sum of Rupees 1,14,373-02 can only be taken into for consideration in respect of Ex.P.13 Medical Bills. The Petitioner has taken treatment at Hosmat Hospital, wherein, he was taken treatment as an inpatient from 10.08.2014 to 18.08.2014, i.e., for 9 days. Considering the nature of the injury 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 1,14,373-02, which is rounded off Rupees 1,14,373/- to the Petitioner.
33. At the time of accident, the Petitioner was studying in 1st Standard. Due to the road traffic accident, the Petitioner had sustained one grievous injury and by admitting as an inpatient for 9 days, he took treatment to the accidental injury. As this Tribunal has already come to the conclusion that, due to the accidental injury, the Petitioner is suffering from 10% disability to the whole body. From this, it appears that, the Petitioner was not attended the classes regularly and not participated in any curricular activities from the date of accident till recovery. Hence, it is just, proper and necessary to award a sum of Rupees 20,000/- towards loss of curricular activities.
34. The P.W.1 has stated that, his son is still under regular follow-up treatment and the Doctors have informed to undergo further surgeries and he has to spend substantial 28 M.V.C.NO.4588/2014 (SCCH-7) amount towards medical and incidental expenses for said surgery. The P.W.2 has stated that, the Petitioner needs stockings and special care of his left foot to prevent skin breakdown and this will cost Rupees 3,000/- annually. It is clearly mentioned in Ex.P.8 Discharge Summary about wound debridement left foot on 11.08.2014, wound inspection and dressing left foot on 13.08.2014 and wound debridement + SSG left foot on 18.08.2014, which disclosed that, at the age of 7 years, the Petitioner had crush injury on his left foot. Therefore, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.2 produced the estimation for future medical assistance and its expenses. However, in the absence of the estimation and by considering the evidence of P.W.1 and P.W.2, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 10,000/- to the Petitioner.
35. By considering the age of the Petitioner, nature of injury, line of treatment and period of treatment in the Hospital by admitting as an inpatient, this Tribunal feels that, it is just, proper and necessary to award a sum of Rupees 3,000/- towards attendant charges, Rupees 3,000/- towards conveyance expenses and Rupees 4,000/- towards food, nourishment and diet etc.,
36. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and suffering already Rs. 1,00,000-00 undergone and to be suffered in future, mental and physical shock, hardship, 29 M.V.C.NO.4588/2014 (SCCH-7) inconvenience, discomfort and loss of amenities in life on account of permanent disability
2. Actual Medical Expenses Rs. 1,14,373-00
3. Loss of curricular activities Rs. 20,000-00
4. Future Medical expenses Rs. 10,000-00
5. Attendant Charges Rs. 3,000-00
6. Conveyance Rs. 3,000-00
7. Food, Nourishment & Rs. 4,000-00 Diet charges TOTAL Rs. 2,54,373-00
37. In all, the Petitioner is entitled for total compensation of Rupees 2,54,373/- along with interest at the rate of 9% per annum on the above said sum (excluding future medical expenses of Rupees 10,000/-) from the date of petition till payment.
38. The P.W.1 has stated that, the Respondent No.1 is the Owner of the vehicle Auto Rickshaw bearing Registration No.KA- 02-AB-7722 and he has furnished the copy of the Insurance Policy bearing No.0152734946 00 to jurisdictional Police to get released his vehicle and the same is valid for the period from 28.11.2013 to 27.11.2014 and the said Policy was issued by the Respondent No.2 in respect of the offending vehicle and as on the date of the accident, the offending vehicle has valid and effective insurance, wherefore, the Respondents are liable to pay compensation.
39. The Petitioner has produced Xerox copy of Insurance Policy bearing No.0152734946 00.
40. It is pertinent to note here that, as per the Order dated 30.03.2016 passed on I.A.No.V, the Petitioner is permitted to 30 M.V.C.NO.4588/2014 (SCCH-7) produce the copy of Insurance Policy bearing No.0152734946 00, validity period from 28.11.2013 to 27.11.2014 issued in respect of Auto Rickshaw bearing Registration No.KA-02-AB-7722 as secondary evidence and mark the same as exhibit on his behalf. Hence, the said Xerox copy of Insurance Policy bearing No.0152734946 00 produced by the Petitioner is marked at Ex.P.17.
41. The P.W.1 in his cross-examination has stated that, Ex.P.17 is a Xerox copy and Ex.P.17 is issued by the Police to him and he has no hurdle to produce the said Policy and he has seen the original Insurance Policy and Javeed Ahmed is not known to him and he is not related to him and he has not enquired with the said Javeed Ahmed about the Insurance Policy obtained by him in respect of the said Auto Rickshaw, which covers the date of accident and since the said Javeed Ahmed is not available to him, he is unable to examine him in the present petition. From the said evidence of P.W.1, it appears that, only Ex.P.17 Xerox copy of Insurance Policy relating to offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 is available with the Petitioner and not its original Insurance Policy. It is pertinent to note here that, though the notice was duly served on the Respondent No.1, who was a R.C. Owner-cum-Driver of the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722, he was remained absent and hence, he is placed as exparte. Hence, the Petitioner is unable to secure the original Insurance Policy of the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722.
42. The Petitioner has examined the Investigating Officer as P.W.3, who has stated in his examination-in-chief that, he has issued Notice under Section 133 of M.V. Act to the R.C. Owner of 31 M.V.C.NO.4588/2014 (SCCH-7) the offending Auto Rickshaw bearing Registration No.KA-02-AB- 7722 and he was given Reply to the said notice along with original D.L., relating to the driver, RC Book, Insurance and Emission Certificate and after verification of the said documents, he has returned it to the Owner of the offending Auto Rickshaw after getting its Xerox copies and the Xerox copy of the Insurance Policy relating to the offending Auto Rickshaw is available in their records, which he brought today. The Xerox copy of the Insurance Policy relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722, which is produced by the P.W.3 during the course of examination-in-chief is marked at Ex.P.18, which is the same copy of Ex.P.17 xerox copy of Insurance Policy. The P.W.3 has further stated that, as per the contents of Ex.P.18 Insurance Policy, the Insurance Policy relating to the offending Auto Rickshaw is valid at the time of accident. From the said evidence of P.W.1 and P.W.3 as well as contents of Ex.P.17 and Ex.P.18 Insurance Policy, it prima-facie appears that, at the time of accident, the offending Auto Rickshaw bearing Registration No.KA- 02-AB-7722 was having a valid Insurance Policy, which covers the date of accident.
43. The P.W.3, during the course of cross-examination, has produced Xerox copies of Notice under Section 133 of M.V. Act issued to the Respondent No.1 and the Reply to the said Notice under Section 133 of M.V. Act issued by the Respondent No.1 and they are marked at Ex.C.1 and Ex.C.2 respectively.
44. It is pertinent to note here that, the Respondent No.2 in his Written Statement as well as in the examination-in-chief of R.W.2, who is its Senior Executive Claims Legal, has disputed about the issuance of the said Ex.P.17 and Ex.P.18 Insurance 32 M.V.C.NO.4588/2014 (SCCH-7) Policy in favour of the Respondent No.1 in respect of the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722. In this regard, the R.W.2 has stated in his examination-in-chief that, their Insurance Company have been unnecessarily made as a party to the proceedings as there is no cause of action as against their Insurance Company and there was no privity of contract between the Owner of the vehicle and the Company to cover any risk in respect of the Auto Rickshaw bearing Registration No.KA- 02-AB-7722 as on the date of accident and the vehicle involved in the accident was not all insured with their Company as on the date of the accident and hence, the petition has to be dismissed as against their Insurance Company. He has further stated that, there was no policy in force as on the date of accident in respect of Auto Rickshaw bearing Registration No.KA-02-AB-7722 and the policy particulars bearing No.0152734946 00 shown in the cause title of the petition is not issued to Auto Rickshaw bearing Registration No.KA-02-AB-7722 and in fact, the said policy number has been issued in favour of one Mr. Raj Gopal. M., to a Motor Cycle bearing Registration No.TN-58-AZ-7954 for the period from 12.11.2013 to 11.11.2014. He has further stated that, their Insurance Company has issued a policy in favour of the Respondent No.1 Auto Rickshaw bearing Registration No.KA-02- AB-7722 having Policy bearing No.0151481151 00 for the period from 17.09.2011 to 16.09.2012 and however, no Policy of Insurance has been issued in favour of the Respondent No.1 Auto Rickshaw bearing Registration No.KA-02-AB-7722 as on the date of accident and hence, he prayed to dismiss the claim petition as against their Insurance Company with costs.
45. The Respondent No.2 has produced Ex.R.3 Certified copy of Insurance Policy for the period from 17.09.2011 to 33 M.V.C.NO.4588/2014 (SCCH-7) 16.09.2012 relating to vehicle bearing Registration No.KA-02-AB- 7722 and Ex.R.4 Certified copy of Insurance Policy for the period from 12.11.2013 to 11.11.2014 relating to vehicle bearing Registration No.TN-58-AZ-7954.
46. On perusal of the contents of Ex.R.3 Insurance Policy, it appears that, it is relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 issued by the Respondent No.2 in favour of the Respondent No.1 covering the period from 17.09.2011 to mid night 16.09.2012. From this, it appears that, the said period of insurance shown in Ex.R.3 is not covered the date of accident, but, it is relating to earlier to the accident in question.
47. On perusal of the contents of Ex.R.4 Insurance Policy, it appears that, it is relating to the Hero Honda Splendor Plus bearing Registration No.TN-58-AZ-7954, which is standing in the name of Raj Gopal. M., covering the period of insurance from 12.11.2013 to 11.11.2014 and the said period of insurance covered the date of accident in question. Further, the Certificate and Policy Number shown in Ex.R.4 is 0152734946 - 0152734946
00. The Certificate and Policy number shown in Ex.P.17 and Ex.P.18 Insurance Policy is 0152734946 00.
48. The P.W.3 in his cross-examination has stated that, the R.C. Owner of the offending Auto Rickshaw came to the Police Station on 16.08.2014, i.e., when the Notice under Section 133 of M.V. Act is issued and on the same day itself, he has issued Reply. He has further admitted that, in Ex.C.2 Reply, no where it is stated by the R.C. Owner of the offending Auto Rickshaw about the issuance of the insurance policy in respect of the offending 34 M.V.C.NO.4588/2014 (SCCH-7) Auto Rickshaw. He has further stated that, he does not remember whether he has complied Section 158(6) of M.V. Act, i.e., information given to the Insurance Company along with vehicular documents of the offending vehicle and after issuance of Ex.C.1 Notice under Section 133 of M.V. Act, he has not issued any requisition or notice to the R.C. Owner of the offending Auto Rickshaw to furnish the particulars of Insurance Policy. He has further stated that, the complaint is lodged at 3-00 p.m., on 14.08.2014 and on the next day, IMV is conducted and as per Ex.P.5 MVI Report, the IMV inspection is conducted in respect of the offending Auto Rickshaw on 14.08.2014 at 3-00 p.m. and according to which, the offending Auto Rickshaw was in the premises of the Police Station at the time of presentation of the complaint itself. He has further stated that, before receiving the complaint, no intimation was received by any other Hospital in respect of the injuries sustained by the Petitioner in the road traffic accident and on 14.08.2014 at 3-45 p.m., to 4-45 p.m., the Spot Mahazar was done and at the time of conducting the Spot Mahazar, the offending Auto Rickshaw was in the premises of the Police Station.
49. From the said evidence of P.W.3, which is elicited from his mouth, it is made crystal clear that, as per Ex.C.1, Notice under Section 133 of M.V. Act, the P.W.3 has not called upon the said Respondent No.1 to produced the Insurance Policy relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB- 7722 and except Ex.C.1 Notice under Section 133 of M.V. Act, the P.W.3 has not issued any notice or requisition to the Respondent No.1 to produce the particulars of the Insurance Policy relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB- 7722 and at the time of filing of the complaint by the father of the 35 M.V.C.NO.4588/2014 (SCCH-7) Petitioner, the offending Auto Rickshaw was in the premises of the Police Station, wherein itself, IMV inspection was conducted and spot mahazar was done, which are quite against the rules and regulations of the inspection and investigation. From this, it appears that, the P.W.3, who is an Investigating Officer, has not conducted the investigation properly and there is defect in the investigation in respect of the accident in question, i.e., involvement of the offending vehicle in the accident in question.
50. But, based on the evidence elicited from the mouth of P.W.1 and P.W.3 by the Respondent No.2 during the course of cross-examination in respect of Ex.P.17 and Ex.P.18 Insurance Policy, Ex.C.1 Notice under Section 133 of M.V. Act and Ex.C.2 Reply to Notice Under Section 133 of M.V. Act, oral evidence of R.W.2, which has been stated by him in his examination-in-chief and the contents of Ex.R.3 Insurance Policy relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 and Ex.R.4 Insurance Policy relating to the Hero Honda Splendor Plus bearing Registration No.TN-58-AZ-7954 as well as the above narrated reasosns, it cannot be believed and accept the defence taken by the Respondent No.2 in respect of the Insurance Policy relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 that, there was no privity of contract between the Respondent No.1, who is the Owner of the offending Auto Rickshaw and the Respondent No.2 Insurance Company to cover any risk in respect of the said offending Auto Rickshaw as on the date of accident and the offending Auto Rickshaw was not at all insured with the Respondent No.2 as on the date of accident and there was no policy in force as on the date of accident in respect of the offending Auto Rickshaw, as, it is up to the Respondent No.2 to take legal action as against the Respondent No.1 and the 36 M.V.C.NO.4588/2014 (SCCH-7) concerned official or agent of its Company, who issued Ex.P.17 and Ex.P.18 Insurance Policy, which were produced by the Respondent No.1 before the Investigating Officer in respect of the criminal case relating to the accident in question during the course of investigation and the Petitioner, who is a minor, is a 3rd party to the said alleged contract of insurance and as such, he no way related and connected with the said allegations made by the Respondent No.2 in respect of the investigation done by the Investigating Officer relating to the offending Auto Rickshaw. Further, what legal steps are taken by it as against the Respondent No.1 and its Officials or agent in respect of the alleged Insurance Policy relating to the offending Auto Rickshaw, that has not been explained by the Respondent No.2. Further, what legal steps is taken by the Respondent No.2 in respect of the said Ex.P.17 and Ex.P.18 Insurance Policies as against the Respondent No.1 and its concerned Official and Agent after knowing that, it has not been issued in favour of the Respondent No.1 in respect of the offending Auto Rickshaw bearing Registration No.KA-02-AB- 7722 that has also not been explained by the Respondent No.2 through the evidence of R.W.2. Further, the R.W.2 in his cross- examination has clearly stated that, they are not used to obtain proposal form from the Owner of the vehicle for issuance of the new Insurance Policy and not in all the cases and now he cannot say and no knowledge that, whether proposal form is obtained from the Owner in respect of Insurance Policy No.0152734946 00 and if the said proposal form is available in their Office, he has no hurdle to produce the same and there is no separate book in respect of the issuance Insurance Policies, but, data entries are available in their Office and the data entry relating to the Insurance Policy No.0152734946 00 is available. From the said evidence of R.W.2, it appears that, the Respondent No.2 has not 37 M.V.C.NO.4588/2014 (SCCH-7) been obtained proposal form from the Owner of the vehicle while issuance of new policy and renewal of policy in all the cases and it is not definite about the proposal form obtained from the Respondent No.1 or not relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 for issuance of the Insurance Policy covering the date of accident. The R.W.2 has further stated that, they have not conducted investigation in respect of the accident in question through their Company Investigator and they have collected all the Police documents and they have also collected the Insurance Policy. From the said evidence of R.W.2, it appears that, at the earliest point of time, the Respondent No.2 has obtained the copy of alleged Insurance Policy from the Police, i.e., copies of Ex.P.17 and Ex.P.18 Insurance Policy. Inspite of that, till today, the Respondent No.2 has not taken any legal steps as against the Respondent No.1 or its Official or its agents in respect of the said alleged Ex.P.17 and Ex.P.18 Insurance Policy. In this regard, the R.W.2 in his cross- examination has clearly stated that, till today, he has not taken legal steps in respect of the said fake Insurance Policy. Further, the R.W.2 has voluntarily stated that, the said Insurance Policy was verified by their Company and it came to know that, it is a fake policy and thereafter, they have issued a notice to the Owner of the vehicle. But, no such notice is produced by the Respondent No.2 to consider the said evidence of R.W.2. The R.W.2 has further stated that, the bar code is available on Ex.P.17 and Ex.P.18. On perusal of the contents of Ex.P.17 and Ex.P.18 Insurance Policy, it appears that, the bar code is affixed on the said Insurance Policies. The R.W.2 has stated that, he does not know that, if the said bar code is converted to decode, entire particulars of the Insurance Policy come out. From this evidence of R.W.2, it appears that, he has shown his ignorance about bar code, which 38 M.V.C.NO.4588/2014 (SCCH-7) is available on Ex.P.17 and Ex.P.18 Insurance Policies. By showing such ignorance, the R.W.2 cannot be escaped from the liability of their Insurance Company, as, he is a Senior Executive Claims Legal in the Respondent No.2 Insurance Company and he has to gone through all the contents of the disputed Insurance Policy and to give clear evidence in respect of consideration of their defence. The R.W.2 has stated that, Ex.R.4 Insurance Policy is relating to the other vehicle and the policy number shown in Ex.R.4 Insurance Policy is 0152734946 0152734946 00. But, in Ex.P.17 and Ex.P.18 Insurance Policies, only the number 0152734946 00 is shown as Certificate and Policy Number and not 0152734946 0152734946 00 as shown in Ex.R.4 Insurance Policy. From this, it is made crystal clear that, the Certificate and Policy Number shown in Ex.R.4 Insurance Policy and Ex.P.17 and Ex.P.18 Insurance Policies are not tallied each other. How and by whom, the alleged Ex.P.17 and Ex.P.18 Insurance Policies are manipulated and on what basis, they are fake Insurance Policies in respect of the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 and what legal steps have been taken by it in this regard, that has not been properly pleaded and proved by the Respondent No.2. Therefore, whatever the defence taken by the Respondent No.2 in respect of Ex.P.17 and Ex.P.18 Insurance Policy relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 cannot be believed and accept.
51. As per Ex.P.17 and Ex.P.18 Insurance Policies, the Respondent No.1, is a R.C. Owner of the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722, who is also the driver of the offending Auto Rickshaw at the time of accident. There is no allegation leveled by the Investigating Officer in Ex.P.6 Charge Sheet as against the Respondent No.1 that, at the time of 39 M.V.C.NO.4588/2014 (SCCH-7) accident, he was not having a valid and effective driving licence to drive such class of offending Auto Rickshaw. The Respondent No.2 has utterly failed to prove that, Ex.P.17 and Ex.P.18 Insurance Policies are fake policies and they are manipulated and created in respect of the offending Auto Rickshaw covering the date of accident. At this stage, it is clear from the contents of Ex.P.17 and Ex.P.18 Insurance Policies that, at the time of accident, the Insurance Policy relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 was valid, which covers the date of accident. Since the Respondent No.2 has utterly failed to prove that, Ex.P.17 and Ex.P.18 Insurance Policy relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 is a fake Insurance Policy and the said Ex.P.17 Insurance Policy is obtained by the Petitioner from the Investigating Officer and by examining the Investigating Officer as P.W.3, the Petitioner has proved the supply of Ex.P.17 Insurance Policy by the said Investigating Officer to him and the P.W.3, who is an Investigating Officer has also produced Ex.P.18 Insurance Policy, which is the same Ex.P.17 Insurance Policy, Ex.P.17 and Ex.P.18 Insurance Policies can very well be looked into for consideration of the liability, which involved in the present petition as against the Respondents No.1 and 2. It is clear from the evidence of R.W.2 that, till today, the Respondent No.2 has not taken any legal steps in respect of Ex.P.17 and Ex.P.18 Insurance Policies either as against the Respondent No.2 or its Officials or its Agents. If at all, in due course of time, it is found that, Ex.P.17 and Ex.P.18 Insurance Policies relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 is a fake and manipulated documents in accordance with law, the Respondent No.2 can very well take necessary legal action as against the Respondent No.2 in respect of the liability, which is decided by this Tribunal as 40 M.V.C.NO.4588/2014 (SCCH-7) against it by initiating legal proceedings for recovery. Therefore, Ex.P.17 and Ex.P.18 Insurance Policies relating to the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 can very well be taken into for consideration of the liability, which involved in the present petition as against the Respondents No.1 and 2.
52. In view of the above said reasons, the Respondent No.1 being a R.C. Owner and the Respondent No.2 being an Insurer of the offending Auto Rickshaw bearing Registration No.KA-02-AB-7722 are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since, the Respondent No.2 is an Insurer, it shall indemnify the Respondent No.1.
53. 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 decision 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.
54. 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 41 M.V.C.NO.4588/2014 (SCCH-7) Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 2,54,373/-
with interest at the rate of 9% p.a. (excluding future medical expenses of Rupees 10,000/-) from the date of the petition till the date of payment, from the Respondent No.2.
The Respondent No.2 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, 50% shall be released in the name of the guardian of the Petitioner through account payee cheque, on proper identification.
Remaining 50% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of the choice of his guardian, till he attains the age of majority.
Advocate's fee is fixed at Rupees 1,000/-.
42 M.V.C.NO.4588/2014(SCCH-7) 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 18th 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 : Arif Pasha
P.W.2 : Dr. Krishan Prasad
P.W.3 : M.C. Shivakumar
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 Hand Sketch
Ex.P.4 : True copy of Spot Panchanama
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Charge Sheet
Ex.P.7 : True copy of Wound Certificate
Ex.P.8 : Discharge Summary
Ex.P.9 : Photographs (3 in nos.)
Ex.P.10 : CD relating to Ex.P.9 Photographs
Ex.P.11 : Notarised xerox copy of Aadaar
Card relating to Arif Pasha
Ex.P.12 : Bonafide Certificate dated 06.07.2014
relating to Azaan Pasha
Ex.P.13 : Medical Bills (27 in nos.)
Ex.P.14 : Outpatient Record
Ex.P.15 : Inpatient Record
Ex.P.16 : X-ray Films (2 in nos.) with Report
Ex.P.17 : Xerox copy of Insurance Policy
Ex.P.18 : Xerox copy of Insurance Policy
43 M.V.C.NO.4588/2014
(SCCH-7)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Raghu Margoor
R.W.2 : Karthik. M.
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : True Copy of Insurance Policy
along with terms and conditions
Ex.R.2 : True Copy of Insurance Policy along
with terms and conditions
Ex.R.3 : Certified copy of Insurance Policy for
the period from 17.09.2011 to
16.09.2012 relating to vehicle bearing
Registration No.KA-02-AB-7722
Ex.R.4 : Certified copy of Insurance Policy for
the period from 12.11.2013 to
11.11.2014 relating to vehicle bearing
Registration No.TN-58-AZ-7954
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.