Bangalore District Court
Sri. Praveen Kumar H vs Sri. Chandrashekara Reddy P.V on 5 February, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 05th day of February 2015
M.V.C.No.1541/2014
Petitioner Sri. Praveen Kumar H.
S/o. Narasimhamurthy,
Aged about 32 years,
R/at No. 35, "Biligiri", 7th Cross,
Swimming Pool Extension,
Malleshwaram, Bangalore - 560 003
And also No.17, Madhura Smruthi,
8th Cross, Near Raghavendra Temple,
S.P.Extention, Malleshwaram,
Bangalore North Taluk.
(Shri C.Anil Babu, Advocate)
V/s
Respondents 1. Sri. Chandrashekara Reddy P.V.
S/o. Late P.V.Chalama Reddy,
Aged about 49 years, R/at No.2,
C/356, O.M.B.R Layout,
Kasturi Nagar, Bangalore - 560 043
Also R/at Flat No.103, Banyan Tree
Apartment, Horamavu Main Road,
Near Railway Cross,
Bangalore - 560043, Karnataka
And also R/at Flat No.103, Banyan Tree
Apartment, Horamavu Main Road,
Near Railway Cross, Bangalore - 560
043, Karnataka.
2 S.C.C.H:8 MVC.No.1541/2014
(Shri N.S.Sheshadri, Advocate)
2. The Manager,
HDFC ERGO General Insurance
Company Limited,
Corporate office: 6th Floor, Loola
Business Park, Andheri-Kurla Road,
Andheri(E), Mumbai - 466659
Also branch office at:
The Branch Manager,
HDFC ERGO General Insurance
Company Ltd.,
H.MGeneva House, Near KFC,
Cunnigham Road, Bangalore - 560 052
(Policy No. 2311200504137000000,
Valid from dt: 22.05.2013 to
21.05.2014)
(Shri V.Shrihari Naidu, Advocate)
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.50,00,000/- for the injuries sustained by him in a road traffic accident.
2. The brief facts of the claim petition are as under:
The petitioner in his claim petition has alleged that, on
03.12.2013 at about 10.15 a.m., he was proceeding as a pillion rider with his colleague by name Harsha Chakkera, from Banaswadi towards Kasturi Nagar in a vehicle Honda active bearing Reg.no.KA- 3 S.C.C.H:8 MVC.No.1541/2014 02-HE-1630, when they were reached near OMBR Layout Road, CMR Law college road, 2nd cross, Dodda Banaswadi, Bangalore, the driver of the Tata Safari (SUV) bearing Reg. No.SP-26-AB-11 has drove the same in a rash and negligent manner in reverse course and dashed against the motor cycle. Due to the said impact he was fell down on the road along with vehicle and the right leg got seriously injured. Thereafter, he was shifted to nearby specialist hospital, Bangalore wherein he took the treatment as an inpatient by spending huge amount.
3. Prior to the accident he was hale and healthy by working as a Software Engineer and earning monthly income of Rs.85,000/- and also he used to work on sight and used to earn more than Rs.4,00,000/- P.A. apart from his salary. Due to the alleged accident his life has got shattered and he is not able to do his daily activities and has become bedridden till today. The accident in question was taken place on the rash and negligent driving of the driver of the Tata Safari. Thereby, the Krishnarajapura police have registered the case against the driver of the motor cycle in their police station Crime No.246/2013 for the offences punishable u/s. Sec.279, 337 of IPC and u/s. 134A and B of MV Act. The respondent No.1 being the 4 S.C.C.H:8 MVC.No.1541/2014 owner and respondent No.2 being the insurer are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondents were appeared through their respective counsel and filed their separate written statements. The respondent No.1 being the owner of the offending vehicle in his written statement has denied that, on 03.12.2013 at about 10.15 a.m., the petitioner along with his colleague were proceeding from Banaswadi towards Kasturi Nagar in a vehicle Honda Activa and driver of the Tata Safari (SUV) has drove the same in a rash and negligent manner in reverse course and dashed the against the motor cycle. As a result, petitioner has sustained grievous injuries and took treatment by spending huge amount and he has also denied the age, avocation, injury and took treatment as alleged in the claim petition. Further he has alleged that the accident was occurred due to the negligence of the rider of the Honda Activa and the rider was not holding valid DL at the time of the accident. So without observing signal has rashly dashed the offending vehicle and fell down and sustained injuries. Though there was no negligence on the part of the driver of the offending vehicle, the police have registered a false case against the offending vehicle driver. But he has admitted that, he has insured the vehicle with the respondent 5 S.C.C.H:8 MVC.No.1541/2014 No.2 and the policy valid from 22.05.2013 to 21.05.2014. Hence he is not liable to pay the compensation and prays for reject the claim petition.
5. The respondent No.2 being the insurer in his written statement has alleged that, the claim petition filed by the petitioner is not maintainable either in law or on facts and the same is liable to be dismissed. The petition is bad for non-joinder of necessary and proper parties for the adjudication of the claim petition and further alleged that, the rider of the Honda Activa was not holding the valid and effective driving license as on the date of the alleged accident. He has alleged that, he has no knowledge about the averments made in column 1 to 6 of the claim petition. Further he has alleged that, the driver of the Tata Safari was taking reverse from parking place in front of his house slowly, cautiously with indication by putting proper signal lights. So, he is not liable to pay any compensation to the petitioner. As the rider of the Honda Activa ridden the same in a rash and negligent manner and lost control over the vehicle and dashed against the rear portion of the Tata Safari. So the accident was taken place on his own negligence. Even the RTO has mentioned while inspecting the vehicle that the rear portion of the vehicle has 6 S.C.C.H:8 MVC.No.1541/2014 got damaged. So, the owner and the driver were wrongly implicated by the jurisdictional police in the charge sheet by colluding with the petitioner in order to get compensation and he has denied the averments made in column No.11 to 14 of the claim petition. The accident in question was taken place on the negligence of the rider of the motor cycle and as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to drive the same. The alleged injuries sustained by the petitioner are simple in nature. The respondent No.1 being the owner has entrusted the vehicle to a person who did not had a valid and effective driving license to drive the vehicle as on the date of the accident. Either the owner of the offending vehicle nor the jurisdictional police have not complied the mandatory provisions under Section 134(C) and 158(6) of the M.V. Act in furnishing better particulars and prays for reject the claim petition.
6. On the basis of the pleadings of the parties the following issues are framed:
1. Whether the petitioner proves that he has sustained grievous injuries as mentioned in the Wound certificate, in a road traffic accident on 03-12-
2013 at about 10.15 a.m., OMBR layout road, CMR Law College, 2nd cross, Dodda Banaswadi, 7 S.C.C.H:8 MVC.No.1541/2014 Ramamurthy Nagar road circle, Bangalore, due to the rash and negligent driving of the driver of the Tata Safari bearing registration No.AP-26-AB-11?
2. Whether petitioner is entitled for any compensation? If so to what extent and from whom?
3. What Order or Award?
7. The petitioner in order to prove his case, has examined himself as PW1 and got marked the documents as Ex.P1 to Ex.P15 and he has examined two witnesses on his behalf as PW2 and PW3 and got marked the documents as Ex.P16 to Ex.P20. The respondents have not examined any witnesses nor marked any documents in their favour.
8. Heard arguments on both side.
9. My finding on the above issues are as under:
Issue No.1: Affirmative Issue No.2: Partly affirmative Issue No.3: As per the final order for the following.
REASONS
10. Issue No.1:
The petitioner being said to be the injured has approached this court on the ground that, on 03.12.2013 at about 10.15 a.m., he was 8 S.C.C.H:8 MVC.No.1541/2014 proceeding in a vehicle Honda active as a pillion rider with his colleague. When they were reached near OMBR Layout Road, CMR Law college road, 2nd cross, Dodda Banaswadi, Bangalore, the driver of the Tata Safari (SUV), drove the same in a rash and negligent manner in reverse course and dashed the against the motor cycle.
As a result he was fell down and sustained injuries. So, he was immediately shifted to nearby specialist hospital, Bangalore wherein he took the treatment as an inpatient by spending huge amount. Thus, he has filed the instant claim petition against the respondents.
11. The petitioner in order to prove his case has filed his affidavit as his chief examination as PW1, in which he has stated that on 03.12.2013 at about 10.15 a.m., he was proceeding as a pillion rider in a Honda active bearing Reg. No.KA-02-HE-1630, with one Harsha Chakkera who was riding the vehicle slowly and cautiously by observing all the traffic rules and regulation. The driver of the Tata Safari (SUV) belongs to the respondent No.1, has driven the same in a rash and negligent manner in reverse course and dashed against the motor cycle. Due to the said impact he was fell down and sustained grievous injuries. Thereby, the Krishnarajapura Police have registered the case against rider of the motor cycle in their 9 S.C.C.H:8 MVC.No.1541/2014 police station in Crime No.246/2013 for the offences punishable u/s. 279 and 337 of IPC and 134(A) & (B) of MV.Act. The PW1 in his cross examination has admitted that, the rider of the Active Honda was holding valid and effective driving license to drive the same. The accident was caused at the place where the respondent No.1 house is situated. He has denied that the rider of the motor vehicle has caused the accident on his own negligence and the accident was occurred on his own negligence and he denied that, the driver of the Tata Safari has put signal and shown the indicator while taking reverse, inspite of that, the accident took place due to the negligence of the rider of the Motor cycle.
12. The PW2 who is said to be the rider of the motor cycle has stated that, as on the date of accident i.e. on 03.12.2013 at about 10.15 a.m., himself and pillion rider were proceeding in Honda Active and when they were reached near OMBR Layout Road, CMR Law college road, 2nd cross, Dodda Banaswadi, Bangalore, the driver of the Tata Safari (SUV) drove the same in a rash and negligent manner in reverse course and dashed the against the motor cycle. Due to the said impact himself and pillion rider were fell down on the road and the petitioner sustained grievous injuries. The accident took place 10 S.C.C.H:8 MVC.No.1541/2014 due to the rash and negligent driving of the offending vehicle driver. PW2 in his cross-examination has denied that, the accident took place on his own negligence and he has caused the accident on the back side of the Tata Safari vehicle.
13. The petitioner in support of his oral evidence, has produced the documents marked as Ex.P1 to Ex.P20. Ex.P1 is the information filed by one Harsha Chakkera who is the rider of the Honda Activa as on the date of alleged accident. In which, he has stated that, on 03.12.2013 at about 10.15 a.m., himself and the injured i.e. himself and the petitioner were proceeding as a rider and pillion rider on his motor cycle. The driver of the Tata Safari (SUV) drove the same in a rash and negligent manner in reverse course and dashed the motor cycle. As a result they fell down and sustained grievous injuries. So based on the information the Krishnarajapura Police have registered the case against the rider of the Tata Safari in their police station Crime No.246/2013 for the offences punishable u/s. 279 and 337 of IPC and us/.134(A) and (B) of M.V.Act. Though the learned counsel for the respondent No.2 while cross examining the PW1 & 2 has suggested that, the accident in question was taken place on the rash and negligence of the rider 11 S.C.C.H:8 MVC.No.1541/2014 of the Motor cycle, for which they have denied the same. If at all the accident took place on the rash and negligent riding of the rider of the motor cycle, nothing is prevented to the owner nor the insurer of the Tata Safari to challenge the complaint nor the charge sheet filed by the I.O., but the reasons best known to the respondent No.2 has not filed any complaint nor challenged the charge sheet filed against the offending vehicle driver. In the absence of the materials on record, it is clear that the Ex.P1 and Ex.P2 are remained unchallenged. Ex.P3 is the sketch clearly reflects that the driver of the Tata Safari has driven the same in a reverse manner in a rash and negligent manner and dashed against the motor cycle as the driver of the offending vehicle has drove the Tata Safari from Southern side to Northern side in a reverse course and caused the accident, when the petitioner was proceeding in a two wheeler in Southern side of the road and the width of the alleged road is 25 feet. So, it is clear that, the accident in question was occurred due to the rash and negligent driving of the offending vehicle driver. Ex.P4 is the wound certificate which clearly reflects that the petitioner has sustained the injuries in a road traffic accident which is said to have been occurred on 03.12.2013. Ex.P7 is the Panchanama drawn by the I.O against the driver of the offending vehicle. Ex.P10 to Ex.P16 12 S.C.C.H:8 MVC.No.1541/2014 are clearly reflects, that the petitioner took treatment as an inpatient in connection of the injuries sustained by him in a road traffic accident said to have been taken place on 03.12.2013. So, the documents marked as Ex.P1 to Ex.P20 are coupled with the oral evidence of PW1 and Pw2. Moreover the respondents have not lead any rebuttal evidence to disprove the oral and documentary evidence of the petitioner. On the other hand, the petitioner has proved his case through oral and documentary evidence that the accident in question was taken place on the rash and negligent riding of the rider of the motor cycle. Hence, I answer this issue in the affirmative.
14. Issue No.2:
The PW1 being the injured in his evidence has clearly stated that, on the date of the accident he was hale and healthy and working in Oracle Financial Services Software Ltd. Co., as a Managing Principal Consultant and earning monthly salary of Rs.1,00,000/-. Due to the accidental injuries he is unable to twist/rotate/or spin or to hold the leg for a moment also, till today he is not able to sit, stand, walk or squat for a minute and he has to take assistance of two members to wake up from the bed. So it 13 S.C.C.H:8 MVC.No.1541/2014 become impossible to lead a normal life as before due to the accidental injuries.
15. The PW1 in his cross examination has admitted that, after the discharge he took the 4 days treatment as inpatient and took the 15 days bed rest by applying 20 days leave, during the leave period company has paid the salary. Prior to the accident he was drawing the salary of Rs.80,000/-. Now, he is drawing salary of Rs.1,00,000/- and he has admitted that, he has received the amount which was spent for his medical treatment under the Mediclaim insurance policy and the Mediclaim insurance company has paid only Rs.1,09,675/- and still there is a balance of Rs.6,000/-. He has denied that the bills produced before the court are Xerox bills and he has admitted that, the original bills have been produced before the insurance company and received the compensation amount which is marked at Ex.P10 and he has denied that, he has not sustained the grievous injuries in a road traffic accident.
16. The PW3 being the Orthopaedic Surgeon at Specialist Hospital, in his evidence has stated that, the petitioner was treated by a team of Orthopedicians i.e. Dr.Prashanth and Dr.Shafiq as the petitioner has sustained the fracture of both bones of right leg, so 14 S.C.C.H:8 MVC.No.1541/2014 open reduction and internal fixation was done with interlocking nail. He was discharged from the hospital on 06.12.2013. So the petitioner has sustained the disability at 42% to the right leg and 14% to the whole body. The PW3 in his cross examination has admitted that, the fracture is united and he has not produced the clinical notes. As one Dr.Prashanth has examined the petitioner and based on the Ex.P17 he has deposed before the court.
17. The PW3 is not the treated Doctor. However, he has admitted in his chief examination that, the fracture is united and 6 to 8 weeks is required to heal the fractures after the accident and he has also stated that, the petitioner has sustained whole body disability of 14%. The PW1 being the injured has clearly stated about his difficulty to twist/rotate/or spin or to hold the leg for a moment also. Even till today he is not able to sit, stand, or walk or squat for a minute and also he has to take assistance of two members to wake up from the bed. So it has become impossible to lead a normal life as before due to the accidental injuries. Ex.P4 is the Wound Certificate issued by the Speciality Hospital, Bangalore in which it is clear that, the petitioner has sustained the following injury;
Fracture of both bones of right leg 15 S.C.C.H:8 MVC.No.1541/2014
18. The said injury is grievous in nature. So, one thing is clear that, the petitioner has sustained fracture of both bones of right leg due to the accident which was occurred on 03.12.2013.
19. Ex.P8 is the Discharge summary clearly reflects that, the petitioner soon after the accident has got admitted to the Speciality Hospital on 03.12.2013 and took treatment as an inpatient from 03.12.2013 to 06.12.2013 for a period of 4 days and he was undergone the surgery. Ex.P13 and Ex.P14 are clearly reflects that, as on the date of the alleged accident, the rider was holding valid and effective driving license to drive the motor cycle. Ex.P15 is the Pay slip goes to show that, the petitioner is working at Oracle Financial Services Software Co., Limited as Managing Principal Consultant and getting monthly salary of Rs.1,04,989/- in the month of August 2014. Ex.P9 to 16 are clear that, the petitioner has sustained the fracture for which he has undergone the surgery. So considering the oral and documentary evidence or record, it is just and necessary to grant just compensation to the petitioner in the following heads;
a)Pain and suffering.
The PW1 being the injured in his evidence has clearly stated that, he met with an accident on 03.12.2013 and sustained fracture 16 S.C.C.H:8 MVC.No.1541/2014 of both bones of right leg and other injuries. So due to the accidental injuries he could not do the work as before. The PW3 in his evidence has stated about the percentage of disability of the petitioner due to the accidental injuries. Ex.P8 is the Discharge Summary of the petitioner which reflects that the petitioner has undergone surgery. So considering the oral and documentary evidence of the PW1 and PW3 and duration of treatment as well and the injuries sustained by the petitioner, he might have sustained pain and agony for which, it is just and necessary to award compensation of Rs.50,000/- for the above head, it will meet the ends of justice. Hence, Rs.50,000/- is awarded for the above head.
b) Loss of income during laid up period:
The PW1 being the injured in his evidence has stated that, on the date of the accident he was hale and healthy and after the accidental injuries he could not do the work as before. But in his cross examination has admitted that, he took the 15 days bed rest by applying 20 days leave and he has received the salary for that period also. Prior to the accident he was drawing the salary of Rs.80,000/-. Now, he is drawing salary of Rs.1,00,000/-. So one thing is clear, that the petitioner has applied leave for a period of 20 days due to the
17 S.C.C.H:8 MVC.No.1541/2014 accidental injuries and he has also received 20 days leave salary from the company and he has been continued in service as the petitioner has not produced any document to show that the company has removed form the service due to the accidental injuries. So, one thing is clear, that he has continued in service and not sustained any loss of income due to the accidental injuries. However, considering the injuries sustained by the petitioner, it is just and necessary to award compensation of Rs.10,000/- for the above head, it will meet the ends of justice. Hence, Rs.10,000/- is awarded for the above head.
c) Medical expenses:
The PW1 being the injured in his evidence has stated that, he has sustained the injuries in a road traffic accident and took the treatment as an inpatient by spending huge amount of Rs.1,00,000/- towards medical expenses. Ex.P10 is the medical bills of Rs.1,49,295/-. The PW1 in his cross examination has admitted that, he has submitted medical bills of Rs.1,15,000/- to the insurance company, for which the company has paid Rs.1,09,675/- under the Mediclaim policy.
18 S.C.C.H:8 MVC.No.1541/2014 Now the question arises, whether the petitioner is entitled for the entire amount which was spent for his treatment as shown in the medical bills and whether the amount which was already received under the mediclaim policy is deductable out of the medical bill amount. So this court drawn its attention on the decision reported in 2013(1) Kar. L.J. 624 (DB) in between New India Assurance Company Limited, Bangalore vs. Manish Gupta and another reads like thus;
MOTOR VEHICLES ACT, 1988, Sections 166(1)(a) and 168 - Medical expenses of injured - claim for compensation in respect of - Where claimant held medical insurance policy and had got medical expenses incurred by him, reimbursed under said policy, his claim for reimbursement of same expenses once again by way of compensation under the Motor Vehicles Act, held, is not maintainable - However, if amount of medical expenses reimbursed to claimant under medical insurance policy is found to be less than amount of compensation admissible to him under the M.V. Act under head "Medical expenses" he is entitled to differential amount as compensation.
On careful perusal of the above said decision, in the said decision the insurance company has challenged the award passed by the Tribunal, as the Tribunal awarded the compensation under the 19 S.C.C.H:8 MVC.No.1541/2014 head of medical expenses incurred by the claimant, though the medical treatment of the claimant has been reimbursed under the Mediclaim policy, thereby their lordship held that claim for compenstion where the claimant held medical insurance policy and had got medical expenses incurred by him, reimbursed under the said policy his claim for reimbursement of same expenses once again by way of compensation under the Motor Vehicles Act is not maintainable, however if an amount of medical expenses reimbursed to claimant under Mediclaim insurance policy is found to be less than amount of compensation admissible to him under the M.V. Act under the head of medical expenses he is entitled to different amount as compensation.
In the instant case also, the petitioner in his cross examination has admitted that, he has received an amount of Rs. 1,09,675/- under mediclaim policy. So, that amount has to be deducted out of the bill amount of Rs. 1,49,295/-, it comes to Rs.39,620/-. Though the learned counsel for the respondent has disputed the medical bills produced by the petitioner, but nothing is placed on record to show that the medical bills produced by the petitioner are not relating to the injuries sustained by him in a road traffic accident. So, in the absence of the materials on record, it is 20 S.C.C.H:8 MVC.No.1541/2014 clear that the petitioner has took the treatment in connection of the injuries sustained by him in a road traffic accident. Therefore, Rs.39,620/- is granted for the above head.
d) Loss of future earning:
The PW1 being the injured in his evidence has clearly stated that, prior to the accident he was hale and healthy and working as a Managing Principal Consultant and getting monthly income of Rs.1,00,000/- and he has sustained huge loss due to the accidental injuries since he could not do the work as before. The PW3 in his evidence he has stated that, the petitioner has sustained the permanent disability due to the accident to the extent of 14% to whole body. But whereas the PW1 in his cross examination he has categorically admitted that, he took the treatment for a period of 4 days and applied for 20 days leave, but he has received the leave salary in that period also. Prior to the accident he was drawing a monthly salary of Rs.80,000/-. Now he is drawing Rs.1,00,000/-. So, it is clear, that still the petitioner has continued in the service without sustaining any loss. Now, the question arises, whether the petitioner is entitled the just compensation under the above head or not? So, this court has drawn its attention on the decision reported
21 S.C.C.H:8 MVC.No.1541/2014 in ILR 2010 KAR 2439 in between Sri Subash vs. The New India Assurance Co. Ltd., Rep. by its Manager and others reads like thus;
MOTOR VEHICLES ACT, 1988 - ACCIDENT CLAI< -
Judgment and Award - Inadequacy of compensation - Appealed against by the Claimant - Insurance Company appeal seeking reduction in compensation - Claimant continued in the services after the accident - Award of compensation towards loss of future income by the Tribunal - Legality of - HELD, The Tribunal has grossly erred in awarding compensation towards loss of future income, resulting in serious miscarriage of justice, when in fact, the claimant has been continued in the services of the Corporation as 'Conductor'. If the claimant is continued in service, then, the question of awarding compensation towards loss of future income does not arise.
- Therefore, compensation awarded towards loss of future income is liable to be set aside - Judgment and Award is modified.
On careful perusal of the said decision, in the said decision the insurance company has challenged the award passed by the Tribunal on the ground that the claimant being the conductor has been continued in the services in the Corporation. So, he is not entitled the compensation under the head of loss of future income. So, in the said 22 S.C.C.H:8 MVC.No.1541/2014 decision their lordship held that the Tribunal has grossly erred in awarding compensation towards loss of future income, resulting in serious miscarriage of justice, when in fact, the claimant has been continued in the services of the Corporation as 'Conductor'. If the claimant is continued in service, then, the question of awarding compensation towards loss of future income does not arise.
In the present case also, PW1 being the injured in his evidence he has clearly admitted that, prior to the accident he was drawing monthly salary of Rs.80,000/-. Now he is drawing Rs.1,00,000/-. When it is clear that, still the petitioner is in service and moreover the petitioner has not produced any material on record to show that, due to the disability he is not attending the duty and company has removed from the service due to the accidental injuries.
In the absence of materials on record and admission made by the petitioner, it is clear that the petitioner has been continued in service. So by virtue of the above said decision the petitioner is not entitled for compensation under the above head. 23 S.C.C.H:8 MVC.No.1541/2014
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
The PW1 being the injured in his evidence has clearly stated that, he has sustained the fracture of both bones of right leg for which he has undergone operation. So he took treatment as an inpatient for a period of 4 days and he also took the bed rest for a period of 20 days and even after the discharge he is taking treatment. So, considering the injuries sustained by the petitioner and the duration of treatment as well as materials on record, it is just and necessary to grant Rs.30,000/- for the above head, it will meet the ends of justice. So Rs.30,000/- is granted for the above head.
f) Future medical expenses:
The PW1 being the injured in his evidence has clearly stated that, one more surgery is required for removal of implant. So considering the oral and documentary evidence on record, it is just and necessary to grant Rs.15,000/- for the above head, it will meet the ends of justice. So Rs.15,000/- is granted for the above head.
24 S.C.C.H:8 MVC.No.1541/2014
20. Thus the total award stands as follows:
1.Pain and suffering Rs. 50,000-00
2.Loss of income during laid up Rs. 10,000-00 period
3.Medical bills Rs. 39,620-00
4.Loss of future earnings -Nil-
5.Loss of amenities, conveyance, Rs. 30,000-00
food and nourishment, attendant
charges etc.
6.Future medical expenses Rs. 15,000-00
Total Rs. 1,44,620.00
21. The respondent No.2 being the insurer in its written statement has admitted about the issuance of policy in respect of the offending vehicle, but the respondent No.2 has not stated period of policy, however the petitioner in his claim petition in the cause title has shown the policy number and its validity from 22-05-2013 to 21-
05-2014, but the reasons best known to the respondent No.2 has not disputed the period of policy as shown in the cause title, that itself is clear the period of policy from 22-05-2013 to 21-05-2014. The accident in question was occurred on 03.12.2013. So one thing is clear that, as on the date of the alleged accident the policy was in existence.
25 S.C.C.H:8 MVC.No.1541/2014
22. Though, the respondent No.2 has taken up the contention that as on the date of the alleged accident the offending vehicle rider was not holding valid and effective driving licence to ride the same. But the reasons best known to the respondent No.2 has not placed any materials on record to substantiate its defense. Moreover, Ex.P6 is the Charge sheet filed by the I.O., nowhere discloses that, the offending vehicle rider was not holding valid and effective driving licence as on the date of the alleged accident. If at all the rider of the offending vehicle was not holding the valid and effective driving licence, the I.O., would have charge sheeted against the offending vehicle rider for the offence punishable under Section 181 of MV Act. So on record there is no material to show that the offending vehicle rider was not holding valid and effective driving licence as on the date of the alleged accident. Therefore this Court drawn its attention on the decision reported in 2011 ACJ 209 in between National Insurance Co. Ltd., vs. Tahira Begum and others reads like thus;
Motor Vehicles Act, 1988, section 149(2)(a)(ii) - Motor insurance - Driving licence - Burden of proof - Liability of insurance company - Insurance company disputed its liability on the ground that driver of the offending vehicle was not holding a valid driving licence at the time of accident - Insurance company led no evidence to establish 26 S.C.C.H:8 MVC.No.1541/2014 its contention - Whether the burden of proof was on the insurance company and it has not discharged its burden by leading cogent evidence - Held: yes; insurance company is liable.
23. On careful perusal of the said decision, in the said decision the insurance company has challenged the Award passed by the Tribunal on the ground that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence. But the insurance company has not placed any materials nor cogent evidence to substantiate its defence. Thereby, the appeal filed by the insurance company came to be dismissed. In the instant case also, though the respondent No.2 has taken up the defence that, as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence, but nothing is placed on record nor led any cogent evidence to substantiate its defence. Therefore, the decision as stated above is directly applicable to the case on hand. So one thing is clear that as on the date of the alleged accident the policy was in existence and the offending vehicle rider was holding valid and effective driving licence. So, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. But in view of the valid insurance policy the respondent No.2 alone is liable to pay the compensation to the petitioner with interest at the 27 S.C.C.H:8 MVC.No.1541/2014 rate of 6% p.a. from the date of petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative.
24. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
ORDER The petition filed by the petitioner under section 166 of M.V. Act is partly allowed, with costs. The petitioner is entitled for compensation of Rs.1,44,620/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation.
The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 being the insurer shall pay the compensation amount with interest at the rate of 6% p.a. from the date of the claim petition till its realisation within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of his choice for a period of three years and the remaining 60% shall be released to him by means of A/c. payee cheque on proper identification. The petitioner 28 S.C.C.H:8 MVC.No.1541/2014 is at liberty to withdraw the periodical interest accrued on his deposit amount from time to time.
The expenses to be incurred for future medication shall not carry any interest.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 05th day of February 2015).
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Sri. Praveen Kumar PW2 Sri.Harsha Chakkera PW3 Dr. Kiran
List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of FIR Ex.P2 True copy of Complaint Ex.P3 True copy of Spot Sketch Ex.P4 True copy of Wound Certificate Ex.P5 True copy of IMV Report Ex.P6 True copy of Charge Sheet 29 S.C.C.H:8 MVC.No.1541/2014 Ex.P7 Pachanama Ex.P8 Discharge summary Ex.P9 One X-ray films(8 Nos.) Ex.P10 50 Medical bills amounting to Rs.1,49,295/- Ex.P11 Attested copy of Passport Ex.P12 Attested copy of ID card Ex.P13 Attested copy of R.C Ex.P14 Attested copy of D.L Ex.P15 Pay Slip for the month of August Ex.P16 Authorisation letter Ex.P17 Disability assessment letter Ex.P18 Discharge Summary Ex.P19 Initial assessment form Ex.P20 Case Sheet
List of the witnesses examined on behalf of respondents:
None List of the documents marked on behalf of respondents:
Nil (P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.