Bangalore District Court
Has Produced Ex.P.1 Of Complaint vs No.1 Himself Examined As R.W.4 on 11 August, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 11th day of August, 2016.
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.531/2015
Krishna,
S/o. Late Siddappa, ..... PETITIONER
Hindu,
Aged about 46 years,
R/at No.C-29,
Sonne Gowda Compound,
7th Cross, C-Block,
Gayatrinagara,
Bangalore - 560 021.
(By Sri. S. Harish, Adv.,)
V/s
1. Sri. H.U. Rajanna, ..... RESPONDENTS
S/o. Urutaiah,
Hindu,
Aged about 58 years,
R/at Harokyathanahalli,
Dasanapura Hobli,
Bangalore North Taluk.
Also at Kurubarahalli Village,
Thavarekere Post,
Bangalore - 562 112.
2 M.V.C.NO.531/2015
SCCH-7
2. The United Insurance Company
Limited,
Sunkadakatte Branch,
No.266, 1st Floor,
Gangadharappa Complex,
Near Syndicate Bank,
Sunkadakatte,
Magadi Main Road,
Vishwaneedam Post,
Bangalore - 91.
(Policy No.072382.31.12.02.00009032,
Valid from 05.03.2013 to 04.03.2014)
(R1- By Sri. S.T. Junjappa, Adv.,)
(R2- By Smt. Padma. S. Uttur, 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 6,00,000/- with interest at the rate of 18% per annum from the date of filing of this petition and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 01.09.2013 at about 11.30 a.m., he along with his brother Narasimha were proceeding on Bangalore-Magadi Main Road to reach Savandurga Lakshmi Narasimhaswamy Temple for Darshanam on a Two wheeler Honda Activa bearing Registration No.KA-01-EN-6161 belonging to him. He was riding the said two 3 M.V.C.NO.531/2015 SCCH-7 wheeler vehicle by observing traffic rules consciously and carefully and his brother was pillion rider. When they reached near Bychuguppe Gate, near Tavarakere, at that time, the Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 came from left side in the said Main Road with rash and negligent manner with high speed driven by its driver wrongly and without following the traffic rules from back side of his vehicle, turned suddenly towards right side without any indication or signal and hit two wheeler Motor Cycle Honda Activa bearing Registration No.KA-01-EN-6161. Due to the said impact, he and his brother Narasimha fell down including the two wheeler vehicle and caused injuries to him as well as to his brother Narasimha and to the vehicle belonging to him.
b) Due to the said accident, he became unconscious and fell down and immediately, he was shifted to Sri Lakshmi Multi- Specialty Hospital, Sunkadakatte, Magadi Main Road, Bangalore- 560 091 in 108 Ambulance, wherein, the duty Doctor diagnosed and treated him for one day up to 8.30 p.m., and during the course of the treatment, it came to know that, he sustained injuries to his back abdomen left upper limb and lower limb and also caused injuries to other parts of his body.
c) Due to the said injuries, he was unable to move and was required to undergo immediate operation to his back bones. Hence, for further treatment, he was shifted to Fortis Hospital at West of Chord Road, Rajajinagar and he was treated in Fortis Hospital, Rajajinagar and the duty Doctor in the said Hospital 4 M.V.C.NO.531/2015 SCCH-7 referred to NIMHANS Hospital for further treatment, but, in the NIMHANS Hospital Authority not willing to give any kind of treatment to him on the ground that, he was discharged from Sri Lakshmi Multi Specialty Hospital as against the medical advice. Since, he was suffering from severe pain in his back bone, hence, he was shifted to Suguna Hospital, Rajajinagar, Bangalore, for further treatment on 02.09.2013 at 3.00 a.m. In the said Hospital, he was treated from 02.09.2013 to 06.09.2013 as inpatient and during the course of treatment, it is found that,
1. Compression fracture of L2 vertebra noted with mildly oedematous marrow.
2. Mild reduction in height of L2 vertebra noted anteriorly;
no evidence of any retropulsion of the vertebra noted.
3. Mild degree of discs desiccation noted at lumbar spines.
4. No evidence of any significant posterior bulging of intervertebral disc noted.
5. Traversing and existing nerve roots appear normal.
6. Spinal cord appears normal in size, shape and signal intensity.
d) For which, he was treated and under gone major treatment to his back bone in the said Hospital as per the Doctors 5 M.V.C.NO.531/2015 SCCH-7 advice and spent Rupees 2,50,000/- towards Hospital charges, Medicines and travel allowance etc., Further, he has spent Rupees 15,610/- on 01.09.2013 in Sri Lakshmi Multi Specialty Hospital and Rupees 2,350/- in Fortis Hospital.
e) After the discharge from the Suguna Hospital on 06.09.2013, he was totally under bed rest for the period of 3 months continuously by sleeping only as per Doctor's advice. He being employee in BBMP, Bangalore, could not attend his duty for a period from 02.09.2013 to 30.09.2013, from 01.10.2013 to 30.10.2013 and 11.11.2013 to 30.11.2013. He was on medical leave for a period of 84 days. In this regard, his employer has also issued Office Order dated 02.12.2013 to the effect.
f) During the course of the treatment, the Doctor found that, compression fracture L2 vertebra without Neurological deficits type II DM and further sustained injuries to abdomen left upper limb and lower limb. It is further advised to undergo major operation to his back bone portion. Further, he also sustained so many grievous injuries to his other parts of the body as explained in the Wound Certificate. He also took treatment for the said injuries in the Hospital.
g) Due to the injuries sustained in the accident, he is unable to sit in any manner for more than half an hour or walk also and Doctor advised him not to drive the vehicle and sit for long time in one place due to the injuries sustained in the road accident. The Doctor has advised him to undergo major operation 6 M.V.C.NO.531/2015 SCCH-7 for his back bone. The said injuries are grievous in nature and affected the bright future of the life.
h) He is still under treatment even to this day. He has spent more than Rupees 3,00,000/- towards medicine, nourishment, Hospital charges, attender charges and conveyance etc.,
i) He is D group employee in BBMP Office, Bangalore and he was drawing a salary of Rupees 23,596/- per month. Since, he could not attend his duty for 3 months and above. Further, he was taking treatment in the house itself as per the Doctors advice by applying the leaves. The Doctors and Nurse were visiting his house and giving treatment and taking physiotherapy and doing exercise, when he was bed ridden in the house during treatment period for three months as per Doctors advice. He was earning as above per month.
j) Due to the accident, pain and sufferings, he is not able to attend his other part of work even to this day. Hence, lost his income, not only spending the amount stated above. He was very active. He is the only earning member in the family. The accident has caused him and his family mental agony, bodily pain and sufferings and he is not able to lead a normal life as he had been doing prior to the accident. Even the injuries will affect his future life including day to day activities.
7 M.V.C.NO.531/2015SCCH-7
k) The accident taken place only at the sole rash and negligent manner of the driving of Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T- 3138 as the driver of the said Tractor has came from left side of the road and hit his vehicle, which was moving on the road slowly by observing traffic rules. In this regard, the Tavarekere Police have also registered case in Cr.No.535/2013 under Sections 279 and 337 of IPC as against the driver of the Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 and charge sheet also filed under the said provisions as against him. The concerned Court has also registered Criminal case as against the driver for the above said offence in C.C.No.494/2014. Hence, the Respondents are liable to pay compensation as sought in this petition.
l) The Respondent No.1 is the insurer, insured with the
Respondent No.2 Company vide Policy
No.07238231120200009032, valid from 05.03.2013 to
04.03.2014, whereas, the accident taken place on 01.09.2013. Hence, both Respondents are liable to pay compensation amount jointly and severally as per law.
m) He has not claimed any compensation before any other Authority under the Motor Vehicle Act or under any other law or Respondents have paid him any amount as compensation. Hence, this petition.
8 M.V.C.NO.531/2015SCCH-7
3. In response to the notice, the Respondent No.1 has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 21.08.2015 passed on I.A.No.III, the written statement filed by the Respondent No.1 is taken on file.
4. Initially, though the notice was duly served on the Respondent No.2, it was remained absent and hence, it was placed as exparte on 04.04.2015. Later, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and as per the Order dated 22.04.2015 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.2 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 09.07.2015 passed on I.A.No.II, the written statement filed by the Respondent No.2 is taken on file.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition is a false and frivolous one filed with ulterior motive for illegal gain. The Petitioner has suppressed the true and material facts and filed the present petition to make unlawful gain based on the documents and stories. The petition is not maintainable either on facts or on law.
9 M.V.C.NO.531/2015SCCH-7
b) The claim for award of compensation of Rupees 6,00,000/- is exaggerated and unrelated to the heads injuries said to have been suffered and the ground reality. It is obvious that, the claimant is trying to convert an unfortunate incident into a windfall.
c) The driver of the Tractor was driving the Tractor carefully by observing the traffic rules. The accident was taken place at the instance of the Petitioner and brother as he was driving carelessly without observing the traffic rules and signals. The Petitioner's two wheeler vehicle only came and dashed the Tractor and caused accident. Hence, taking his vehicle number has got registered a false case in order to claim a compensation. No accident is taken place as alleged by him. Therefore, he is not at all responsible for the said accident in any manner.
d) Hence, the Petitioner himself is sole responsible for the said self accident. The said accident was happened only due to reckless and careless traveling in sleeping mood in the vehicle belongs to him.
e) Four wheeler Tractor bearing Registration No.KA-09-T- 3139 and Trailer bearing Registration No.KA-09-T-3138 is duly insured with the Respondent No.2 Insurance Company in this case vide Policy No.072382.31.12.02.00009032 and the same was in force and valid during alleged accident time, i.e., from 05.03.2013 to 04.03.2014. The alleged accident happened on 01.09.2013. Hence, even after the above, if any amount is 10 M.V.C.NO.531/2015 SCCH-7 awarded, the same is liable to be paid by the Respondent No.2. Without prejudice to his contention taken above, the accident was not occurred due to the rash and negligent driving of him. Hence, the Petitioner is not entitled to any compensation from him. Further, the driver of the Tractor was also having valid driving licence issued by the concerned Authority to drive the Tractor. Hence, prayed to dismiss the claim petition.
6. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) Without prejudice to the above contention, it seeks the permission of this Hon'ble Court to urge the following grounds.
b) It is admits the policy issued in the name of Rajanna in respect of the vehicle (Trailer) bearing Registration No.KA-09-T- 3139, same is valid at the time of accident, if liability any, subject to the terms and conditions of the Insurance Policy.
c) The claim petition is liable to the dismissed for non- joinder of necessary parties, viz., Insurer/Insured of the Motor Cycle bearing its Registration No.KA-01-EN-6161.
d) The Respondent No.1/insured is duty bound under Section 134 of the M.V. Act to inform the accident and submit all the vehicle documents including driving licence and Insurance particulars to it to seek indemnification. The Respondent No.1 has failed and neglected to perform the statutory obligations to seek the indemnification. Violation of the M.V. Act in this regard and 11 M.V.C.NO.531/2015 SCCH-7 also violation of the terms and conditions of the Insurance Contract would disentitle the Respondent No.1 to claim the indemnification from it. As such, the claim petition deserves to be dismissed against it on the score alone.
e) This accident has taken place due to the negligence of the Petitioner/rider of the Motor Cycle bearing Registration No.KA- 01-EN-6161. Hence, it is not liable to indemnify the present claim petition and the same may be dismissed against it.
f) The vehicle bearing Registration No.KA-09-T-3139 and KA-09-T-3138 is not having the valid and effective fitness certificate and permit as on the date of accident and the insured has violated the terms and conditions of the policy. Hence, it is not liable to indemnify the present claim petition.
g) The driver of the offending vehicle bearing Registration No.KA-09-T-3139 and KA-09-T-3138 is not having the valid and effective driving licence to drive the specified class of vehicle, which is involved in the alleged accident. Hence, it is not liable to indemnify the present claim petition in view of the violation of the breach of the policy conditions.
h) It seeks leave of this Hon'ble Court for filing the Additional Written Statement if required in the facts and circumstances of the case.
i) In the event this Hon'ble Court/Tribunal arrives at a conclusion that, it is liable to pay the compensation, then, interest 12 M.V.C.NO.531/2015 SCCH-7 that may be restricted to 6% per annum. The Petitioner shall be entitled to interest only on pecuniary loss sustained and no interest shall be awarded in respect of non-pecuniary damages.
j) It seeks permission from this Hon'ble Tribunal to contest the matter on all the grounds available to the Insured under Section 170 of the M.V. Act.
k) The amount of compensation claimed, viz., Rupees 6,00,000/-, is too excessive, exorbitant and does not have nexus to the age, avocation, injury and alleged earnings of the Petitioner. Hence, prayed to dismiss the petition.
7. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Tractor bearing Reg.No.KA-09-T-3139 and Trailer bearing Reg.No.KA-09-T-
3138 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation and damages? If so, how much and from whom?
3. What Order?
13 M.V.C.NO.531/2015SCCH-7
8. 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.26. On the other hand, the Respondent No.1 has examined three witnesses as R.W.1 to R.W.3 and has placed reliance upon Ex.R.1 to Ex.R.7(a) and the Respondent No.1 himself has examined as R.W.4 by filing an affidavit as his examination-in-chief and has not marked any documents on his behalf. Ex.P.26 is marked through R.W.1, by confrontation.
9. Heard the arguments. The Learned Counsel appearing for the Respondent No.2 has filed the written arguments.
10. 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 1,71,425/- with
interest at the rate of 9%
p.a. 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;
14 M.V.C.NO.531/2015
SCCH-7
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, on 01.09.2013 at about 11.30 a.m., he along with his brother Narasimha were proceeding on Bangalore-Magadi Main Road to go to Savandurga Lakshmi Narasimhaswamy Temple for Darshanam on a two wheeler Honda Activa bearing Registration No.KA-01-EN-6161 belonging to him and he was riding the said two wheeler Motor vehicle by observing traffic rules consciously and carefully and his brother was pillion rider and when they reached near Bychuguppe Gate, near Tavarakere, at that time, the Tractor bearing Registration No.KA- 09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 came from left side on the said Main Road with rash and negligent manner with high speed driven by its driver wrongly and without following the traffic rules from back side of their vehicle and turned suddenly towards right side without giving any indication or signal and hit their Motor Cycle. He has further stated that, due to the said impact, he and his brother Narasimha fell down including two wheeler vehicle and caused injuries to him as well as to his brother Narasimha and to his two wheeler vehicle and due to the said accident, he became unconscious. He has further stated that, he was immediately shifted to Sri Lakshmi Multi Specialty Hospital, Sunkadakatte, Magadi Main Road, Bangalore, in 108 Ambulance, wherein, the duty Doctor diagnosed and treated him for one day up to 8.30 p.m. and during the course of the treatment, it came to know that, he sustained injuries to his back abdomen left upper limb and lower limb also caused injuries 15 M.V.C.NO.531/2015 SCCH-7 to other parts of his body and due to the said injuries, he was unable to move and was required to undergo immediate operation to his back bones and hence, for further treatment, he was shifted to Fortis Hospital at West of Chord Road, Rajajinagar, wherein, he was treated and again the duty Doctor in the said Hospital referred to NIMHANS Hospital for further treatment, but, in the NIMHANS Hospital Authorities were not willing to give any kind of treatment to him on the ground that, he was discharged from Sri Lakshmi Multi Specialty Hospital as against the medical advice. He has further stated that, since, he was suffering from severe pain in his back bone, he was shifted to Suguna Hospital, Rajajinagar, Bangalore for further treatment on 02.09.2013 at 3.00 a.m., wherein, he was treated from 02.09.2013 to 06.09.2013 as an inpatient and during the course of treatment, it is found that, he had sustained compression fracture of L2 vertebra noted with mildly oedematous marrow, mild reduction in height of L2 vertebra noted interiorly no evidence of any retropulsion of the vertebra noted, mild degree of discs desiccation noted at lumbar spines, no evidence of any significant posterior building of inter vertebral disc noted, traversing and existing nerve roots appear normal, spinal cord appears normal in size, shape and signal intensity. He has further stated that, the accident taken place only at the sole rash and negligent manner of the driving of Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 as the driver of the said Tractor has came from left side of the road and hit his moving vehicle on the road slowly by observing traffic rules and in this regard, the Tavarekere Police have also registered a case in Crime 16 M.V.C.NO.531/2015 SCCH-7 No.535/2013 under Sections 279 and 337 of IPC as against the driver of the Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 and charge sheet also filed under the said provisions as against him and the concerned Court has also registered Criminal Case as against the driver for the said offences in C.C.No.494/2014.
12. No doubt, the Petitioner has not made the R.C. Owner and Insurer of the Motor Cycle bearing Registration No.KA-01-EN- 6161 as parties to the present petition. Further, the P.W.1 in his cross-examination has stated that, his vehicle was proceeding on the same direction and there was no right turn on the accidental spot. He has further stated that, he does not know the contents of his affidavit and according to him, at the time of accident, the offending Tractor was not taking right turn as shown in the affidavit and the back side and left side portion of his Motor Cycle were damaged. Further, Ex.P.8 Wound Certificate issued by Sri Lakshmi Multi Specialty Hospital discloses that, in the said road traffic accident, the Petitioner had sustained 3 simple injuries, i.e., Abrasion over the left arm on lateral aspect, in the middle 1/3rd measuring 2 X 1 cms., abrasion over the right leg on lateral aspect in the middle 1/3rd measuring 2 X 2 cms., abrasion over the right thigh on lateral aspect in the lower 1/3rd measuring 3 X 2 cms. Further Ex.P.7 MVI Report disclosed that, the offending Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 not sustained any damages.
17 M.V.C.NO.531/2015SCCH-7
13. But, the said evidence elicited from the mouth of P.W.1 by the Respondents and the contents of Ex.P.8 Wound Certificate no way affect to consider the case made out by the Petitioner as well as oral evidence of P.W.1, which has been stated by him in his examination-in-chief, as, to corroborate his oral version, the Petitioner has produced Ex.P.1 of Complaint, Ex.P.2 FIR, Ex.P.3 Statement of Sri Krishna S/o. Siddappa, Ex.P.4 Charge sheet, Ex.P.5 Spot Panchanama, Ex.P.6 MVI Report, Ex.P.7 MVI Report, Ex.P.8 Wound Certificate, Ex.P.10 Lab Reports, Ex.P.11 X-ray Films 2 in numbers, Ex.P.12 Discharge Summary, Ex.P.13 Lab Report, Ex.P.14 Radiology Reports, Ex.P.15 Letter issued by Fortis Hospital, Ex.P.16 Discharge Summary, Ex.P.20 Notarised Xerox Copy of Driving Licence relating to him and Ex.P.21 X-ray Films 12 in numbers, which clearly disclosed that, at the time of accident, the Petitioner, who was riding the Motor Cycle bearing Registration No.KA-01-EN-6161 was having a valid and effective driving licence to ride such class of Motor Cycle and the entire negligence is on the part of the driver of the offending Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138, which came from left side on the accidental road and dashed to the said Motor Cycle on its behind and due to the said terrific impact, he and his brother fell down along with the Motor Cycle and he had sustained grievous injuries, i.e., compression fracture L2 vertebrae without Neurological deficits type II DM by admitting as inpatient for one day on 01.09.2013 at Lakshmi Multi Specialty Hospital and from 02.09.2013 to 06.09.2013, i.e., 5 days, at Suguna Hospital, which is clear from the following discussion. Further, the P.W.1 in his 18 M.V.C.NO.531/2015 SCCH-7 cross-examination has clearly stated that, on 01.09.2013, they two were proceeding on the Motor Cycle and he was riding the said Motor Cycle, which was owned by him and it was having Insurance Policy of ICICI Insurance Company and the Tractor was came on the back side of his vehicle and his vehicle and the Tractor were proceeding on the same direction and the Tractor dashed to his vehicle on its behind and after the accident, he was admitted in Lakshmi Multi Specialty Hospital and the public and his younger brother were shifted him to the Hospital and he has taken treatment as an inpatient for one day in the said Hospital and thereafter, he was shifted to Fortis Hospital and then to NIMHANS Hospital and he was not admitted as an inpatient in NIMHANS Hospital and no operation was conducted to him in Suguna Hospital. Further, the Petitioner has examined the treated Doctor as P.W.2, who has stated in his examination-in-chief that, the Petitioner came to their Hospital on 02.09.2013 with an alleged history of road traffic accident on 01.09.2013 and got initial treatment at Sri Laxmi Hospital and later, at Fortis and NIMHANS Hospital and he was diagnosed to have II lumbar body compression fracture and he was treated conservatively and discharged on 06.09.2013 with an advice of rest and review with MRI after one week. Further, the P.W.2 has also produced Ex.P.23 Inpatient Record, Ex.P.24 Out Patient Record and Ex.P.25 X-ray Films 2 in numbers, which also clearly disclosed about the nature of injuries sustained in the said road traffic accident, the line of treatment and length of treatment taken by him in the said Hospital. Further, the P.W.2 in his cross-examination has clearly stated that, he has treated the Petitioner and initially, the 19 M.V.C.NO.531/2015 SCCH-7 Petitioner had taken treatment at Laxmi Hospital, Fortis Hospital and NIMHANS Hospital and later, he came to Suguna Hospital. Further, the P.W.1 has clearly denied the suggestions put to him by the Respondents during the course of cross-examination that, the entire back portion of his Motor Cycle was damaged in the said accident and the front left side portion of his Motor Cycle was damaged and since the offending Tractor not dashed to the back side of his Motor Cycle and as such, the back portion of his Motor Cycle not damaged and he himself riding the Motor Cycle with very high speed and due to his own negligence itself, the accident was taken place and he did not sustained any fracture in the alleged accident and the alleged accident was taken place due to his own negligence itself and not the driver of offending Tractor and only to claim compensation, he is giving false evidence by producing creative documents. From this, it appears that, though the P.W.1 has been cross-examined by the Respondents, nothing has been elicited from his mouth to consider their specific defence. Further, though the Respondent No.2 has examined its Officer as R.W.2, he has not stated anything about the alleged accident caused to the Petitioner by the offending Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 by its driver, the nature of injuries sustained by the Petitioner in the said road traffic accident, the line of treatment and length of treatment. Further, though the Respondent No.1 himself examined as R.W.4, he has also not disputed about the accident in question caused to the Petitioner by the driver of his offending Tractor bearing Registration No.KA- 09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 in 20 M.V.C.NO.531/2015 SCCH-7 his examination-in-chief. From this, it appears that, no acceptable material evidence is forth coming on behalf of the Respondents to deny or to discard the above said oral version of P.W.1, which has been stated by him in his examination-in-chief as well as the contents of the above said material Police and medical documents, relating to the accident in question, which caused to the Petitioner.
14. The contents of Ex.P.1 Complaint and Ex.P.2 FIR clearly disclosed that, the younger brother of the Petitioner, who was proceeding as a pillion rider has lodged Ex.P.1 Complaint before the Tavarekere Police as against the driver of offending Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 by alleging that, on 01.09.2013 at 11.30 a.m., when he and his younger brother, i.e., Petitioner, were proceeding on their Activa Honda Motor Cycle bearing Registration No.KA-01-EN-6161 near Byachuguppe Gate, at that time, the Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 came with very high speed, rash and negligent manner by its driver and dashed to their Motor Cycle and due to the said impact, he had sustained simple injuries to his hands and legs and his brother has sustained grievous injuries to his back and through 108 Ambulance, he was shifted to Laxmi Multi Specialty Hospital and their Motor Cycle had also sustained simple damages and as such, he prayed to take necessary legal action as against the driver of the offending Tractor and based on Ex.P.1 Complaint, the said Police have registered a criminal case as against the driver of the offending 21 M.V.C.NO.531/2015 SCCH-7 Tractor for the offences punishable under Section 279 and 337 of IPC under Crime No.535/2013. No doubt, the alleged accident was taken place on 01.09.2013 at 11.30 a.m., but, the Ex.P.1 Complaint is lodged on 02.09.2013 at 3.30 p.m., which disclosed that, there is one day delay in lodging the complaint in respect of the said road traffic accident, which caused to the Petitioner. But, the said one day delay no way affect to consider the case of the Petitioner, as, it is clear from the medical documents that, immediately after the accident, the Petitioner was shifted to Sri Laxmi Multi Specialty Hospital and as such, he and his younger brother, who is the complainant had no occasion to lodge a complaint immediately after the accident.
15. The contents of Ex.P.3 Statement of the Petitioner further clearly disclosed that, the entire negligence is on the part of the driver of the Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138, which dashed to their Motor Cycle on its behind by taking it to right side from left side and due to the said impact, he had sustained grievous injuries on his left hand, right foot and back and immediately, he was shifted to Sri Laxmi Multi Specialty Hospital through 108 Ambulance to take treatment to the said accidental injury.
16. The contents of Ex.P.5 Spot Panchanama and Ex.P.6 and Ex.P.7 MVI Reports further clearly disclosed that, the offending Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 as well as its driver are very much involved in the said road traffic accident, which 22 M.V.C.NO.531/2015 SCCH-7 dashed to the Motor Cycle bearing Registration No.KA-01-EN- 6161, wherein, the Petitioner along with his younger brother was proceeding and the entire negligence is on the part of the driver of the said offending Tractor and Trailer. The damages caused to the said Motor Cycle, are clearly shown in Ex.P.6 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. Ex.P.6 and Ex.P.7 MVI Reports further clearly disclosed that, the said accident was not occurred due to any mechanical defects of the said vehicles.
17. The contents of Ex.P.8 Wound Certificate disclosed that, with alleged history of road traffic accident on 01.09.2013 around 12.00 Noon, the Petitioner was admitted in Sri Laxmi Multi Specialty Hospital, on 01.09.2013 at 12.30 p.m., itself and on examination, it is found that, he had sustained 3 simple injuries, i.e., Abrasion over the left arm on lateral aspect, in the middle 1/3rd measuring 2 X 1 cms., abrasion over the right leg on lateral aspect in the middle 1/3rd measuring 2 X 2 cms., abrasion over the right thigh on lateral aspect in the lower 1/3rd measuring 3 X 2 cms., which are simple in nature. But, based on the contents of Ex.P.3 Wound Certificate, it cannot be said that, in the said road traffic accident, the Petitioner had sustained only 3 simple injuries, as, the Petitioner had also produced Ex.P.9 Letter dated 07.09.2015 issued by Suguna Hospital, Ex.P.10 Lab Report, Ex.P.11 X-ray films, Ex.P.12 Discharge Summary, Ex.P.13 Lab Reports, Ex.P.14 Radiological Reports, Ex.P.15 Letter issued by Fortis Hospital, Ex.P.16 Discharge Summary and Ex.P.21 X-ray Films and also through P.W.2, produced Ex.P.23 Inpatient Record, 23 M.V.C.NO.531/2015 SCCH-7 Ex.P.24 Outpatient Record and Ex.P.25 X-ray Films, which clearly disclosed that, in the said road traffic accident, the Petitioner had sustained compression fracture L2 vertebra without neurological deficits type II DM, which is grievous in nature and by admitting as inpatient for one day on 01.09.2013 at Laxmi Multi Specialty Hospital and from 02.09.2013 to 06.09.2013, i.e., for 5 days, he took treatment to the said accidental injury at Suguna Hospital, totally for 6 days, he took treatment to the said accidental injuries. From this medical evidence, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained one grievous injury and by admitting as an inpatient totally for 6 days, he took treatment to the said accidental injuries.
18. The contents of Ex.P.4 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 Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 by its driver itself, the said road traffic accident was taken place on 01.09.2013 at 11.30 a.m., near Bychuguppe Cross, Tavarekere Hobli, Bangalore South Taluk, which dashed to Activa Honda bearing Registration No.KA-01-EN-6161, wherein, the Petitioner was proceeding as a rider and his younger brother was proceeding as a pillion rider and due to the said impact, the Petitioner and his younger brother were fell down along with Motor Cycle and the Petitioner had sustained grievous injuries on his back and his younger brother had sustained simple injury and as such, after 24 M.V.C.NO.531/2015 SCCH-7 thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of offending Tractor and Trailer for the offences punishable under Section 279 and 337 of IPC. There is no allegation leveled by the Investigating Officer as against the Petitioner in Ex.P.4 Charge Sheet about his negligence in the commission of the said road traffic accident, while riding his Activa Honda Motor Cycle bearing Registration No.KA-01-EN- 6161.
19. 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 Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T- 3138 in the commission of the said road traffic accident and there was no negligence on the part of the Petitioner in riding his Motor Cycle bearing Registration No.KA-01-EN-6161 and in the said road traffic accident, the Petitioner had sustained one grievous injury and the said offending Tractor and Trailer as well as its driver are very much involved in the said road traffic accident. Accordingly, I answered Issue No.1 in the Affirmative.
20. ISSUE NO.2 :- The Petitioner had produced Ex.P.20 Driving Licence relating to him, which disclosed that, his date of birth is on 14.09.1967. The date of accident is on 01.09.2013. From the said dates, it appears that, at the time of accident, the Petitioner was 46 years old. Hence, the age of the Petitioner is considered as 46 years at the time of accident.
25 M.V.C.NO.531/2015SCCH-7
21. The P.W.1 has stated that, he is a 'D' Group Employee in BBMP Office, Bangalore and he is drawing a salary of Rupees 23,596/- per month. The Petitioner has produced Ex.P.18 Memorandum dated 02.12.2013 issued by BBMP and Ex.P.19 Salary Slip for the month of January 2015. He has further stated that, at the time of accident, his salary was of Rupees 26,936/- per month. Ex.P.18 Memorandum does not disclose the salary of the Petitioner at the time of accident and Ex.P.19 Salary Slip is relating for the month of January 2015. To corroborate his oral evidence in respect of the salary at the time of accident, the Petitioner has not produced any authenticated documents issued by his employer. The date of accident is on 01.09.2013. The Petitioner has not produced the salary slip for the month of August 2013, i.e., which is the last drawn salary. Further, though the P.W.1 in his cross-examination has stated that, he is receiving his salary from his account, he did not care to produce the statement of his Bank Account. In this regard, he has stated that, he has not produced the Bank Statement or pass book. Therefore, the salary of Rupees 23,596/- per month as stated by the Petitioner cannot be believed and accept. However, at the time of accident, the Petitioner was 46 years, which disclosed his family status and he was working as a 'D' Group Employee in BBMP office, Bangalore, 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 10,000/- per month at the time of accident. Hence, the notional income of the Petitioner is considered as Rupees 10,000/- per month at the time of accident.
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22. The P.W.1 has stated that, after discharge from Suguna Hospital on 06.09.2013, he was totally in bed rest for 3 months continuously by sleeping only as per the Doctors advise and he was on medical leave for a period of 84 days. While answering Issue No.1, this Tribunal has observed and come to the conclusion based on the medical documents that, in the said road traffic accident, the Petitioner had sustained compression fracture L2 vertebra without neurological deficits type II DM, which is grievous in nature and by admitting as inpatient totally for 6 days, he took treatment to the said accidental injuries at Laxmi Multi Specialty Hospital and Suguna Hospital. The same is also clear from the evidence of P.W.2. It is also clearly mentioned in Ex.P.16 Discharge Summary that, during the course of treatment, the Petitioner was admitted in ICU and treated with medications and physiotherapy and he was advised at the time of discharge for strict bed rest for 3 weeks, back care and log rolling to side as advise, exercises as advise, DVT compressive staking along with medications. Ex.P.17 Letter dated 28.11.2013 issued by Suguna Hospital disclosed that, the Petitioner was admitting in Suguna Hospital from 02.09.2013 to 06.09.2013 for compression fracture of L2 vertebrae and he was advised to take rest from 07.09.2013 and he is fit to resume his duties with precautions as advised from 01.12.2013. Ex.P.18 Memorandum dated 02.12.2013 issued by BBMP further clearly disclosed that, the employer of the Petitioner had availed E.L of 84 days from 02.09.2013 to 30.09.2013 and from 01.10.2013 to 30.10.2013 and from 11.11.2013 to 30.11.2013, on medical grounds. From this material evidence, it is made crystal clear that, since the Petitioner had sustained 27 M.V.C.NO.531/2015 SCCH-7 compression fracture L2 vertebrae without neurological deficits type II DM, which is grievous in nature, as per the advise of the treated Doctors, the Petitioner had taken regular follow-up treatment from the date of discharge till 30.11.2013. Therefore, the said evidence of P.W.1 in respect of follow-up treatment by him to the said accidental injury after discharge from the Hospital can very well be believed and accept.
23. The P.W.1 has stated that, due to the injuries sustained in the accident, he is unable to sit in any angle/manner for more than half an hour or walk also and the Doctor advised him not to drive the vehicles and sit for long item in one place due to the injuries sustained in the road traffic accident. As per Doctor advice, still the Petitioner is under treatment and he will have to undergo major operation for his back bone and the said injuries are grievous in nature and affected his bright future. He has further stated that, due to the accident, pain and sufferings, he is not able to attend his other part of work even to his day and hence, he lost his income not only spending the amount and he was very active. He has further stated that, he is the only earning member in the family and the accident has caused mental agony to him and his family, bodily pain and sufferings and he is not able to lead his normal life as before as he was doing prior to the accident and even the injuries will affect his future life including day to day activities.
24. The P.W.2 has stated that, now the Petitioner complains of pain in the back unable to bend down, weakness of 28 M.V.C.NO.531/2015 SCCH-7 lower limbs and frequent pain and that, due to the said injuries sustained by him, he is unable to walk for long distance, unable to sit for long time and he is unable to work. He has further stated that, he cannot do his day to day work due to the said injury to the said portion. He has further stated that, on examination, tenderness in the lumbar spine with milk kyphosis and mild loss of lower in the limbs, with this, he has a disability of 10% as per the Central Government Notification.
25. In the said road traffic accident, the Petitioner had sustained compression fracture L2 vertebra without neurological deficits type II DM and by admitting as inpatient, totally for 6 days, he took treatment to the said accidental injury in the Hospital. Further, after discharge from the Hospital, the Petitioner took regular follow-up treatment as per the advise of the treated Doctor till 30.11.2013. Further, Ex.P.9 Letter dated 07.09.2015 issued by Suguna Hospital, clearly disclosed that, the Petitioner has permanent pain and recent examination shows lumbar vertebrae and he is advised not to lift weight and stand for long time. By considering the said nature of injury, line of treatment and length of treatment, it can be safely held that, due to the said accidental injury, the Petitioner is suffering from permanent disability of 10% as stated by the P.W.2, who is a treated Doctor. No doubt, the P.W.2 in his cross-examination has stated that, at the time of assessing of disability of the Petitioner, he has not gone through inpatient records and he has only gone through out patient records relating to the Petitioner and the Petitioner has not undergone any surgery. But, the said evidence of P.W.2, which is 29 M.V.C.NO.531/2015 SCCH-7 elicited from his mouth by the Respondents no way affect to consider the said extent of 10% permanent disability as stated by the P.W.2 in his examination-in-chief, which is suffering by the Petitioner due to the said accidental injuries, as, in the said road traffic accident, the Petitioner has sustained spine injury. Therefore, the evidence of P.W.1 and P.W.2 relating to difficulties and disability sustaining by the Petitioner due to the said accidental injury and 10% permanent disability are believed and accept.
26. But, based on the said extent of disability, the Petitioner is not entitle for future loss of income arising out of the said permanent disability of 10% and future medical expenses, as, the P.W.1 in his cross-examination has clearly stated that, now, he is receiving salary of Rupees 20,000/- + odd per month with increment and now also, he is continuing the same job, which clarify the fact that, after the completion of treatment till 30.11.2013 i.e., from 01.12.2013, the Petitioner continued the same job and getting the same income without any disturbance.
28.
27. However, the Petitioner in the said road traffic accident had sustained compression fracture L2 vertebrae without neurological deficits type II DM, which is grievous in nature and due to the accidental injury, he is suffering from 10% permanent disability, the Petitioner is entitled for compensation under the following heads.
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28. As per the above said medical document as well as evidence of P.W.1 and P.W.2, the Petitioner had sustained compression fracture L2 vertebra without neurological deficits type II DM, which is grievous in nature. The Petitioner was in the Hospital as an inpatient from 01.09.2013 to 01.09.2013, i.e., for one day at Sri Lakshmi Multi-specialty Hospital and from 02.09.2013 to 06.09.2013, i.e., for 5 days at Suguna Hospital, totally for 6 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 30,000/- towards pain and suffering.
29. As it is already observed that, the age of the Petitioner was 46 years. He has to lead remaining his entire life with 10% 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.
30. The P.W.1 has stated that, after the discharge from the Suguna Hospital on 06.09.2013, he was totally under bed rest for a period of 3 months continuously by sleeping only as per the Doctors advise and he being employee in BBMP Bangalore, he could not attend his duty for a period from 02.09.2013 to 30.09.2013, from 01.10.2013 to 30.10.2013 and 11.11.2013 to 30.11.2013 and he was on medical leave for a period of 84 days and in this regard, his employer has also issued Officer Order 31 M.V.C.NO.531/2015 SCCH-7 dated 02.12.2013 to the effect. The Petitioner has produced Ex.P.17 Letter dated 28.11.2013 issued by Suguna Hospital, wherein, the Petitioner was advised to take rest from 07.09.2013 and he is fit to resume his duties with precautious as advised from 01.12.2013, as he was admitted in the said Hospital from 02.09.2013 to 06.09.2013 for compression fracture of L2 vertebrae. The Petitioner has also produced Ex.P.18 Memorandum dated 02.12.2013 issued by BBMP, which disclosed that, by considering the leave application filed by the Petitioner, his employer has granted Earned Leave from 02.06.2013 to 30.09.2013, from 01.10.2013 to 30.10.2013 and 11.11.2013 to 30.11.2013, totally 84 days on medical grounds. The Petitioner had sustained compression fracture of L2 vertebrae, which is grievous injury and he was in the Hospital as an inpatient for 6 days. As per the advise of the treated Doctors, the Petitioner had required bed rest after discharge from the Hospital, which is also clear from the Ex.P.12 and Ex.P.16 Discharge Summaries, Ex.P.23 Inpatient Records and Ex.P.24 Outpatient Records. Ex.P.17 and Ex.P.18 clarify the fact that, the Petitioner had taken Earned Leave of 84 days to take follow-up treatment as per the advise of the treated Doctors on medical grounds. As the Petitioner was a BBMP employee, he had Leave Encashment facility from his employer by surrendering credited Earned Leaves. Since, the Petitioner had taken such kind of Earned Leave of 84 days for his treatment to the accidental injury as per the advise of the treated Doctors, he has lost the benefit of leave encashment facility. Therefore, the Petitioner has deprived the said income and as such, the Petitioner is entitled for compensation towards loss of 32 M.V.C.NO.531/2015 SCCH-7 income during laid up period, i.e., 84 days. As this Tribunal has already come to the conclusion that, the notional income of the Petitioner was of Rupees 10,000/- p.m., at the time of accident. Therefore, at the rate of Rupees 10,000/- per month, a sum of Rupees 28,000/- (Rupees 10,000/- (/) 30 days X 84 days) is awarded towards loss of income during the laid up period.
31. The P.W.1 has stated that, he has spent Rupees 2,50,000/- towards Hospital charges, medicines, laboratory charges and travel allowances etc., and further, he has also spent Rupees 15,610/- on 01.09.2013 in Sri.Lakshmi Multi Specialty Hospital and Rupees 2,350/- in Fortis Hospital in addition to the said expenses. He has further stated that, he is still under treatment even to this day and he has spent more than Rupees 3,00,000/- towards medicine, nourishment, Hospital charges, attenders charges and conveyance etc. He has further stated that, he is attending his duty by traveling in a Auto Rickshaw, for which, he will be have to spent Rupees 60/- - Rupees 80/- per time and further, he used to take Auto Rickshaw or Car only wherever he go including the visiting the Hospital, because, he cannot claimed Bus and will have to attend his duty. In this regard, the Petitioner has produced Ex.P.22 Medical Bills 31 in numbers, which is amounting of Rupees 1,30,324/-. The P.W.1 has stated in his cross-examination has stated that, he has deposited a sum of Rupees 30,000/- and odd towards medical expenses in Suguna Hospital and after admission of Lakshmi Multi-specialty Hospital, a sum of Rupees 10,610/- is deposited. He has further stated that, he does not know that, the said 33 M.V.C.NO.531/2015 SCCH-7 amount of Rupees 10,610/- is included in the final bill and the amount covered under Serial No.1 Advance Bill is included in Serial No.5 Final Bill. He has further stated that, Serial No.10 to 13 are relating to Advance Receipts relating to Suguna Hospital. On perusal of the said Medical Bills, it appears that, Serial No.1 amounting of Rupees 10,610/- dated 01.09.2013 of Ex.P.22 Medical Bills is inpatient deposit receipt and the said amount is included in Serial No.5 Bill Receipt dated 01.09.2013 and Serial No.10 amounting of Rupees 25,000/-, Serial No.11 amounting of Rupees 5,000/-, Serial No.12 amounting of Rupees 10,000/- and Serial No.13 amounting of Rupees 1,289/- of Ex.P.22 Medical Bills are included in Serial No.7 Inpatient Bill amounting of Rupees 41,289/-. Hence, the amount covered under Serial No.1, 10, 11, 12 and 13 has to be deducted in the amount of Rupees 1,30,324/- . The total amount covered under Serial No. 1, 10, 11, 12 and 13 is of Rupees 51,899/- (Rupees 10,610/- + Rupees 25,000/- + Rupees 5,000/- + Rupees 10,000/- + Rupees 1,289/-). After deduction of the said amount of Rupees 51,899/-, the actual amount comes to Rupees 78,425/- in respect Ex.P.22 Medical Bills. Hence, the said amount of Rupees 78,425/- is only taken into for consideration out of Ex.P.22 Medical Bills. The Petitioner has taken treatment at Sri.Lakshmi Multi Specialty Hospital, wherein, he was taken treatment as an inpatient from 01.09.2013 to 01.09.2013, i.e., for 1 day and from 02.09.2013 to 06.09.2013, i.e., for 5 days, totally for 6 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 34 M.V.C.NO.531/2015 SCCH-7 the said actual medical expenses of Rupees 78,425/- to the Petitioner.
32. As the Petitioner was taken treatment as an inpatient for 6 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.,
33. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and sufferings Rs. 30,000-00
2. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
3. Rs. 28,000-00 up period
4. Actual medical expenses Rs. 78,425-00
5. Conveyance Rs. 5,000-00
6. Attendant Charges Rs. 5,000-00 Food, Nourishment &
7. Rs. 5,000-00 Diet charges TOTAL Rs. 1,71,425-00
34. In all, the Petitioner is entitled for total compensation of Rupees 1,71,425/- along with interest at the rate of 9% per annum on the above said sum from the date of petition till payment.
35. The P.W.1 has stated that, the Respondent No.1 is the insurer, insured with the Respondent No.2 Company vide Policy 35 M.V.C.NO.531/2015 SCCH-7 No.07238231120200009032, valid from 05.03.2013 to 04.03.2014, whereas, the accident taken place on 01.09.2013 and hence, both the Respondents are liable to pay compensation amount jointly or severally as per law. He has further stated that, he has not received any amount from his employer also in connection with the accident in question.
36. While answering Issue No.1, this Tribunal has already come to the conclusion that, the offending Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 as well as its driver are very much involved in the said road traffic accident, wherein, the entire negligence is on the part of the driver of the offending Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T- 3138 in the commission of the said road traffic accident and there was no negligence on the part of the Petitioner in riding his Motor Cycle bearing Registration No.KA-01-EN-6161 and in the said road traffic accident, the Petitioner had sustained one grievous injury and the said offending Tractor and Trailer as well as its driver are very much involved in the said road traffic accident. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.2 is an insurer of the offending vehicle bearing Policy No.072382.31.12.02.00009032, valid from 05.03.2013 to 04.03.2014. The Respondent No.1 in his written statement has stated that, 4 wheeler Tractor KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 is duly insured with the Respondent No.2 Insurance Company vide Policy No.072382.31.02.00009032 and the same was in force and valid 36 M.V.C.NO.531/2015 SCCH-7 at the time of alleged accident, i.e., from 05.03.2013 to 04.03.2014. The Respondent No.2 has also admits in its written statement that, the policy issued in the name of Rajanna, i.e., the Respondent No.1, in respect of the vehicle Trailer bearing Registration No.KA-09-T-3139 and the same is valid at the time of accident and if liability any, subject to the terms and conditions of the Insurance Policy. The R.W.4, who is the Respondent No.1, has stated in his examination-in-chief that, the said Tractor and Trailer have duly insured with the Respondent No.2 and the policy was in force as on the date of the alleged accident and the same has been admitted by the Respondent No.2. Ex.R.6 and Ex.R.7 Statements clearly disclosed that, at the time of accident, the Respondent No.1 was a registered owner of the offending Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138. From the said material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an insurer of the offending Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 and its Insurance Policy was valid, which covers the date of accident and Krishnappa S/o. Narashimappa was a driver of the said offending Tractor.
37. The Respondent No.2 has disputed about the valid and effective driving licence to drive such class of offending Tractor by its driver at the time of accident. In this regard, the R.W.2, who is the Officer of the Respondent No.2 Insurance Company has stated in his examination-in-chief that, the driver of the insured vehicle 37 M.V.C.NO.531/2015 SCCH-7 Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 is not having valid and effective driving licence to drive Tractor and Trailer at the time of accident and hence, the insured has willfully violated the terms and conditions of the Insurance Policy and it is not liable to indemnify the claim petition. He has further stated that, the insured has given the statement before the Police as on the date of accident that, the vehicle is used for commercial purpose. As this Tribunal has already observed about the production of Ex.R.6 Voluntary Statement of Accused recorded in Crime No.535/2013 relating to Tavarekere Police, i.e., the driver of offending Tractor, namely, Krishnappa S/o. Narashimappa and Ex.R.7 Statement of Sri Rajanna S/o. Late Urutaiah recorded in Crime No.535/2013 relating to Tavarekere Police. Further, in Ex.R.6, it is stated by the driver of the offending Tractor and Trailer that, on 01.12.2013 at 10.00 p.m., he was returning from Kudusiddanapalya to Kurubarahalli through Kudusiddanapalya, Bychuguppe- Bangalore-Magadi Road after unloading the load. From this, it appears that, at the time of accident, the offending Tractor and Trailer were proceeding after unloading the load. It is further mentioned in Ex.R.7 Statement of Respondent No.1 that, on 01.12.20123, the Tractor and Trailer were went on hire basis and at 8.00 a.m., the load was unloaded from the said Trailer and returned to Kurubarahalli through Kudusiddanapalya- Bychuguppe Bangalore-Magadi Road and at that time, near Bychuguppe Cross, at 10.00 a.m., the accident was taken place. From this, it appears that, as on the date of accident, the said offending Tractor and Trailer were proceeding for unloading the 38 M.V.C.NO.531/2015 SCCH-7 load before the accident and after unloading, when it was returning, the accident was taken place. Further, the R.W.1, who is a FDA in RTO, Jayanagar, by producing Ex.R.3 Driving Licence relating to Krishnappa S/o. Narasimhappa i.e., the driver of Tractor and Trailer, has stated that, as per Ex.R.3 Driving Licence, the said Krishnappa S/o. Narasimhappa is authorized to drive Tractor only and he is authorized to drive Tractor and Trailer non- transport by holding driving licence extract and if the Trailer has attached to the Tractor, it is transport vehicle. He has identified Ex.P.26 Driving Licence relating to the said driver Krishnappa S/o. Narasimhappa and in this regard, he has stated that, it is mentioned in Ex.P.26 that, 'agree Tr.Trl' and the same has not been shown in Ex.R.3 and based on Ex.P.26 Driving Licence, the Tractor and Trailer can drive for self purpose and not for commercial purpose and based on Ex.P.26 Driving Licence, the person, who is only having the said driving licence is authorized to drive the white board Tractor and Trailer. Further, the R.W.3, who is an Investigating Officer has stated that, he does not know that, as on the date of accident, the owner of the Tractor and Trailer was transporting the soil to his land and he has not collected the trip sheet from the owner of the Tractor and Trailer and he has not personally enquired whether the said Tractor and Trailer was used on hire basis or own use and Ex.R.6 Statement is recorded on 17.09.2013 and Ex.R.7 Statement is recorded on 13.12.2013.
38. But, based on the said evidence adduced by the Respondent No.2 itself, it cannot be believed and accept that, at the time of accident, the driver of the offending Tractor and Trailer 39 M.V.C.NO.531/2015 SCCH-7 was not having a valid and effective driving licence to drive such class of Tractor and Trailer, as, it was used for commercial purpose, i.e., for transportation purpose and as such, the Respondent No.1, who is the R.C. Owner of the offending Tractor and Trailer has violated the terms and conditions of Insurance Policy and as such, the Respondent No.2 is not liable to pay any compensation to the Petitioner by indemnifying the Respondent No.1, as, though it is clearly mentioned in Ex.R.6 and Ex.R.7 that, at the time of accident, the offending Tractor and Trailer was proceeding on the accidental spot after unloading the goods on hire basis, except the said statements, no other allegation made by the Investigation Officer as against the Respondent No.1 in Ex.R.4 and Ex.P.5 Charge Sheet that, though the said offending Tractor and Trailer was authorized to use for agricultural purpose and not for commercial purpose as per its vehicular documents, it was used for commercial purpose, which is in violation of the terms and conditions of Insurance Policy and permit and the driver of the offending Tractor and Trailer was also not having valid and effective driving licence to drive such class of offending vehicle. Further Ex.R.6 and Ex.R.7 Statements are not the conclusive proof, as, it were recorded by the Investigating Officer during the course of investigation. Furthermore, Ex.R.6 and Ex.R.7 Statements clearly disclosed that, at the time of accident, the offending Tractor and Trailer was empty, i.e., after unloading the load it was proceeding on the accidental spot. Even, it is not established by the Respondent No.2 that, before the accident, what was transported in the offending Trailer for unloading. Further, there is no allegation made by the Investigating Officer in 40 M.V.C.NO.531/2015 SCCH-7 the charge sheet that, the said offending Tractor and Trailer was using at the time of accident, for commercial purpose in violation of its vehicular documents issued by the competent Authority. Furthermore, the R.W.4, who is the Respondent No.1 has clearly stated in his examination-in-chief that, on 01.12.2013, his driver Krishnappa was transporting the gober (fertilizer) for his own use and on the said day, the Tractor and Trailer was plying from Bychuguppe to Kurubarahally by loading gober (fertilizer) and on the said day, the said Tractor and Trailer after unloading the gober (fertilizer) in the land, it was returning from Kurubarahalli to Bychuguppe in order to load the gober at Bychaguppe and when it was reached near Bychuguppe, the two wheeler Motor Cycle came and hit the Tractor. He has clearly stated that, he has never given such statement before the Police by stating that, he was using the Tractor and Trailer for hire purpose on the said day. He has further clearly stated that, he was using the said Tractor and Trailer for his own use in order to transport the gobar into the land. Hence, it cannot be believed and accept the defence taken by the Respondent No.2 that, at the time of accident, the offending Tractor and Trailer were using for commercial purpose and the driver of the offending Tractor and Trailer was not having valid and effective driving licence to drive such class of offending Tractor and Trailer.
39. As this Tribunal has already observed about the production of Ex.P.26 Driving Licence relating to Krishnappa S/o. Narasimhappa, which clearly disclosed that, at the time of accident, the said driver was having a valid and effective driving 41 M.V.C.NO.531/2015 SCCH-7 licence to drive such class of offending Tractor and Trailer. From this, it is made crystal clear that, at the time of accident, the driver of the offending Tractor and Trailer was having a valid and effective driving licence to drive such class of vehicle.
40. From the above said material evidence, it is made crystal clear that, the Respondent No.1, who is a R.C. Owner of the offending Tractor bearing Registration No.KA-09-T-3139 and Trailer bearing Registration No.KA-09-T-3138 has not violated the terms and conditions of the admitted Insurance Policy. Under such circumstances, the Respondent No.1 being a R.C. Owner and the Respondent No.2 being an insurer of the said offending Tractor and Trailer, 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. Hence, Issue No.2 is answered accordingly.
41. 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 1,71,425/-
42 M.V.C.NO.531/2015SCCH-7 with interest at the rate of 9% p.a., 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 one month from the date of this Order.
In the event of deposit of compensation and interest, entire amount shall be released in the name of Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 11th day of August, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
43 M.V.C.NO.531/2015SCCH-7 ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. Krishna
P.W.2 : Dr. Nagaraj. B.N.
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : Certified copy of Complaint
Ex.P.2 : Certified copy of FIR
Ex.P.3 : Certified copy Statement of Sri. Krishna
S/o. Siddappa
Ex.P.4 : Certified copy Charge Sheet
Ex.P.5 : Certified copy of Spot Panchanama
Ex.P.6 : Certified copy of MVI Report
Ex.P.7 : Certified copy of MVI Report
Ex.P.8 : Certified copy of Wound Certificate
Ex.P.9 : Certified copy of Letter dated
07.09.2015 issued by Suguna Hospital
Ex.P.10 : Lab Reports
Ex.P.11 : X-ray Films (2 in nos.)
Ex.P.12 : Discharge Summary
Ex.P.13 : Lab Report
Ex.P.14 : Radiological Records
Ex.P.15 : Letter issued by Fortis Hospital
Ex.P.16 : Discharge Summary
Ex.P.17 : Letter dated 28.11.2013 issued
by Suguna Hospital
Ex.P.18 : Memorandum dated 02.12.2013
issued by BBMP
Ex.P.19 : Salary Slip for the month of
January 2015
Ex.P.20 : Notarized Xerox copy of Driving
Licence relating to Krishna
Ex.P.21 : X-ray Films (12 in nos.)
Ex.P.22 : Medical Bills (31 in nos.)
Ex.P.23 : Inpatient Record
Ex.P.24 : Outpatient Record
44 M.V.C.NO.531/2015
SCCH-7
Ex.P.25 : X-ray Films (2 in nos.)
Ex.P.26 : Xerox copy of Driving Licence relating
to Krishnappa S/o. Narasimhappa
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : H.V. Shankaranarayan
R.W.2 : Chandra Shekar
R.W.3 : Devaraj
R.W.4 : H.U. Rajanna
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Authorization Letter dated 20.01.2016
Ex.R.2 : D.L. Extract relating to Krishnappa
Ex.R.3 : D.L. Extract relating to Krishnappa S/o.
Narasimhappa
Ex.R.4 : True copy of Charge Sheet
Ex.R.5 : True copy of Spot Panchanama
Ex.R.6 : True copy of Voluntary Statement of
Accused recorded in Crime No.535/2013
relating to Tavarekere Police
Ex.R.7 : True copy of Statement of Sri. Rajanna
S/o. Late Urutaiah recorded in Crime
No.535/2013 relating to Tavarekere Police
Ex.R.7(a) : Marked Portion of Ex.R.7.
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.