Bangalore District Court
Shanwaz C/O Navas vs Hemanthkumar on 31 December, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 31st DAY OF DECEMBER, 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & MACT
M.V.C No.705/2014
PETITIONER: Shanwaz C/o Navas,
No.164, Puttenahalli Cross,
Kamakshamma,
Yelahanka Bangalore,
Bangalore City.
Working Address
No.10/1, Lakshminarayana Complex,
Palace road,
Bangalore - 560 052.
(By pleader - Sri. Maitrey Krishnan)
- V/S -
RESPONDENTS: 1. Hemanthkumar,
No.725, 2nd B Main Road,
OMBR Layout, Banaswadi,
Bangalore - 560 043.
(By pleader - Sri. Jaganatha.M)
2. Bajaj Allianz General Insurance
Company Limited,
No.31, TBR Town, 1st Cross,
New Mission Road,
Near Bangalore Stock Exchange,
SCCH - 11 2 MVC No.705/2014
Bangalore - 560 027.
(By pleader - Sri. Janardhan Reddy)
JUDGMENT
Petitioner has filed this claim petition against the respondents claiming the compensation for the injuries sustained in the road traffic accident.
2) It is averred that, on 23.12.2013 at about 2:30pm, petitioner was crossing the road near Shri.Kodandarama Temple, Bangalore-Bellary Main Road. At that time, the rider of Bajaj Pulsor motor cycle bearing No.KA-03-HF-5251 has ridden the said vehicle in rash and negligent manner endangering human life with high speed from Hebbal towards Yelahanka and dashed to the petitioner. Due to the said impact, petitioner fell down and sustained grievous injuries. Petitioner has sustained fracture L-3 shaft left tibia, MCL, and PCL Grade 3 injury Right Knee and Right Zymgomatic Arch Fracture. Immediately after the accident, petitioner was taken to SCCH - 11 3 MVC No.705/2014 Baptist hospital and she was admitted as inpatient from 23.12.2013 to 26.12.2013. Later on, the petitioner was shifted to Sita Bhateja hospital wherein she was admitted as inpatient from 26.12.2013 to 31.12.2013 and she has undergone multiple examinations and operations and he has spent more than Rs.1,00,000/- towards medical and other expenses. Petitioner has been discharged from hospital with advice for complete bed rest for minimum period of one year and take rest for further period of one year. Petitioner is not able to perform physical tasks and she is continuing treatment and she needs constant attention and she is unable to perform basis tasks on her own. The mother of petitioner is working at silk power loom who is required to take care of petitioner and presently, her mother is unemployed. The petitioner requires another surgery including interlock nailing left tibia and knee POP cast for right knee and she needs large amount for further treatment and medicines. Due to accidental injuries, petitioner is unable to perform routine activities for one year and she is unable to attend household work and unable to walk, sit, stand and she requires complete bed SCCH - 11 4 MVC No.705/2014 rest. She is suffering from severe mental agony and shock and she has lost love, affection and happiness and she has also lost her earnings.
3) Prior to the accident, petitioner was aged about 19 years and she was hale and healthy and she was working as cashier in Big Straw and earning Rs.14,000/- per month. Now due to the accidental injuries, she has become disabled and she is not a in condition to work permanently to earn for her livelihood and she is deprived of all amenities. Hence, the petitioner has claimed the compensation of Rs.24,28,000/- along with interest and costs.
4) Though, respondent No.1 has appeared through his counsel, he has not appeared and contested the claim petition. Hence, respondent No.1 has been placed exparte.
5) The respondent No.2 has filed written statement and denied the contents of claim petition. It is contended that, petitioner is not working in Bangalore and this claim SCCH - 11 5 MVC No.705/2014 petition will not come jurisdiction of this court and liable to be dismissed in view of decision of Hon'ble High Court in New India Assurance Company Ltd V/s Kannappa in M.F.A.No.1458/2007 and ILR 2013 KAR 102. It is admitted that, respondent No2 has issued insurance policy bearing No.OG141701180200043644 in favour of respondent No.1 in respect of motor cycle bearing No.KA- 03-HF-5251, but liability of the respondent No.2 is subject to terms and conditions of insurance policy. As per section 134(c) of Motor Vehicles Act, the respondent No.1 is duty bound to furnish particulars of policy, date, time and place of the accident, particulars of injured, name of driver and driving licence particulars, but the respondent No.1 has not furnished said information and he has not complied the statutory demand. As per section 158(6) of Motor Vehicles Act, it is mandatory duty on the part of jurisdictional police to forward all relevant documents to the insurer within 30 days from the date of information, but jurisdictional police have not furnished relevant documents to the respondent No2 and have not complied statutory requirements. As on the date of accident, rider of SCCH - 11 6 MVC No.705/2014 offending vehicle was not holding valid and effective driving licence and jurisdictional police have registered the case and after investigation, they have filed charge sheet against the rider of offending vehicle for the offences punishable under section 279, 338 of IPC and section 3 (1) R/W.S.181 of Motor Vehicles Act for not having driving licence and the respondent No.1 has violated terms and conditions of insurance policy. Hence, the respondent No.2 is not liable to pay any compensation and only respondent No.1 is liable to pay the compensation to the petitioner. If the respondent No.1 fails to contest the claim petition or colludes with petitioner, the respondent No.2 may be permitted to take all defences available to the insured under section 170 of Motor Vehicles Act. In the event of any award is passed against the respondent No.2, rate of interest may be restricted to 6% per annum as per decision of Hon'ble High Court and no interest shall be payable for future medical expenses and future loss of income and interest is to be paid over the amount which has become payable on the date of award as per decision of Hon'ble Supreme Court reported in R.D.Hattangadi V/s Pest SCCH - 11 7 MVC No.705/2014 Control India Pvt.Ltd AIR 1995 SC 755. The compensation claimed by the petitioner is highly excessive, exorbitant and has no rationale. Therefore, it is prayed for dismissal of claim petition with costs.
6) The petitioner herself examined as PW1 and also examined Dr. Ajay Rao as PW2 and got marked ExP.1 to 27 and closed the evidence. The respondent No2 has examined Sri. S.Srinivasalu S/o Late K.Ramachandraiah, Smt.Pratibha W/o Harish, Miss. Vidya Paid D/o Dayandand Pai and Chandra Shekhar S/o Muddaiah as RW1 to 4 and got marked ExR.1 to 5 and closed the evidence. Though, sufficient time has been granted to the respondent No.1, he has not led his evidence. Hence, respondent No.1 side evidence is closed.
7) Heard the arguments of learned counsel for petitioner and learned counsel for respondents and perused the evidence on record.
SCCH - 11 8 MVC No.705/2014
8) On the basis of the pleadings of the parties, following issues have been framed;
1. Whether petitioner proves that, on 23.12.2013 at about 2:30pm, near Kodandarama Temple, Byatarayanapura, B.B.Road, Yelahanka, Bangalore when petitioner was crossing the road, at that time, the rider of Bajaj Pulsor Vehicle No.KA- 03-HF-5251 ridden the said vehicle with high speed and rash and negligent manner and dashed to the petitioner by which she sustained grievous injuries?
2. Whether respondent No.2 proves that, as on the date of accident, the rider of motor cycle was not having valid and effective driving licence?
3. Whether petitioner is entitled for the relief of compensation as prayed in the petition? If so, what is the quantum of compensation?
4. What order or award?
PRELIMINARY ISSUES
1. Whether this tribunal has got jurisdiction to try this petition?
9) My findings on the above issues are as under:
Prl. Issue No.1 Negative;
Issue No.1 : Affirmative;
SCCH - 11 9 MVC No.705/2014
Issue No.2 : Affirmative;
Issue No.3 : Partly Affirmative; the petitioner is
entitled to compensation of
Rs.1,61,015/- with interest @ 6%
p.a. from the date of petition till
complete realisation, from
respondent No.1.
Issue No.4 : As per final order, for the
following :
REASONS
10) PRELIMINARY ISSUE: The respondent No.2
has taken contention that, petitioner is not residing in Bangalore and this court has no jurisdiction to try this claim petition. Since the petitioner is residing in the address at C/o Navas # 164, Puttenahalli Cross, Kamakshamma Main Road, Yelahanka, Bangalore and same address has been shown in the FIR and charge sheet and she has also produced her payslip to show that, she is working in Bangalore. Hence, the contention taken by the respondent No.2 is not acceptable. So I answer preliminary issue in the negative.
SCCH - 11 10 MVC No.705/2014
11) ISSUE No.1:- PW.1 has stated in her evidence that, on 23.12.2013 at about 2:30pm, she was crossing the road, near Shri Kodandarama temple, Bangalore main road, at that time, the rider of the motor cycle bearing No.KA-03-HF-5251 has ridden the said vehicle in rash and negligent manner from Hebbal towards Yelahanka and hit to her. She has stated that, due to the said accident, she has sustained grievous injuries and accident has taken place due to rash and negligent driving by the driver of offending vehicle and jurisdictional police have registered the case in crime No.149/2013 against the rider of the said vehicle for offences punishable under section 279, 337 of I.P.C.
12) The learned counsel for petitioner has filed written arguments and contended that, the accident has taken place due to rash and negligent driving by the driver of offending vehicle and to that effect, petitioner has produced true copy of complaint and F.I.R and though, petitioner has been cross-examined by the learned counsel for respondent, nothing has been elicited to disbelieve her SCCH - 11 11 MVC No.705/2014 evidence. The learned counsel for respondent has contended in his arguments that, the accident has taken place not due to the negligence of the driver of the offending vehicle but due to the negligence of the petitioner who was crossing the road un-minded without observing the movements of the vehicle on the road. He has submitted that, petitioner was crossing the road where there is no zebra crossing and police have issued notice to the driver on the basis of reply give by the owner of the vehicle. He has submitted that, it is mandatory duty of the insured to furnish all the documents to the respondent No.2 and the rider of the offending vehicle was not holding valid and effective driving licence and police have filed charge sheet against him under Section 3(1) R/w.Section 181 of Motor Vehicle Act and concerned RTO has been summoned and examined by the respondent No.2. He has relied upon Judgment of Hon'ble High Court in MFA No.23432/2011 (MV) in support of his contention.
13) On appreciating the evidence on record, in the cross-examination of PW1, she has stated that, she was SCCH - 11 12 MVC No.705/2014 crossing the road from Byatarayanapura to go to the house of her friend. She has admitted that, Byatarayanapura road is busy road. As per her evidence, she has seen the motor cycle at the distance of 250 feet. She has admitted that, in the hand sketch map, the width of said road is shown as 80 feet and there is no zebra line at the place of accident and she has denied that, she had not followed traffic rules and regulations and tried to cross the road and due to her negligence, the accident has taken place.
14) The petitioner has produced true copy of order sheet in CC No.235/2014 and as per the said document, criminal case has been registered against the rider of the motor cycle for the offences punishable under section 279, 338 of IPC and section 3(1) R/W.Section 181 of Motor Vehicle Act and he appeared before the court and admitted his guilt and paid fine amount. She has also produced true copy of charge sheet which is marked at Ex.P.2 and as per the said document, police have filed charge sheet against the rider of the offending vehicle. On perusal of the police document like charge sheet, they reveal that, police SCCH - 11 13 MVC No.705/2014 have filed charge sheet against the rider of the offending vehicle for the offences punishable under section 279, 338 of IPC and section 3(1) R/W. Section 181 of Motor Vehicle Act. The accident has taken place, when petitioner was crossing the road from west to east direction and rider of motor cycle came from Byatarayanapalya and dashed to the petitioner and caused grievous injuries and this fact is clear from the oral evidence of PW.1 and charge sheet. So, I hold that, petitioner has proved the rash and negligent driving by the rider of motor cycle. So, I answer issue No.1 in affirmative.
15) ISSUE No.2: The respondent No.2 has taken contention that, as on the date of accident, the rider of the offending vehicle was not holding valid and effective driving licence. The respondent No.2 has adduced the evidence of RW.1 who is police inspector who has stated in his evidence that, he has conducted the investigation in crime No.149/2013 and after completion of investigation, he has filed charge sheet against the rider of the vehicle bearing No.KA-03-HF-5251 for rash and negligent driving and not SCCH - 11 14 MVC No.705/2014 having driving licence under Section 279, 338 of I.P.C and Section 3(1) R/W.Section 181 of Motor Vehicle Act. The respondent insurance company has also examined RW.2, Smt.Prathiba who has also stated that, the rider of offending vehicle was not holding driving licence to ride the motor cycle and Yelahanka traffic police have investigated the matter and filed charge sheet against the rider of the motor cycle for offences punishable under Section 279, 338 of I.P.C and Section 3(1) R/W.Section 181 of Motor Vehicle Act. The respondent insurance company has examined RW.4 who is FDA in RTO office, Yeshwanthpura and as per his evidence, he is unable to produce driving licence only on the basis of the name particulars of driver without his date of birth and it requires driving licence number and date of birth to furnish the driving licence extract before this court and without driving licence number and date of birth, the driving licence particulars cannot be furnished.
16) The learned counsel for insurance company has submitted that, the police have registered the case against the rider of the offending vehicle and after investigation, SCCH - 11 15 MVC No.705/2014 they have filed charge sheet against him for the offices punishable under Section 279, 338 of I.P.C and Section 3(1) R/W.Section 181 of Motor Vehicle Act and as the date of accident, the rider of the motor cycle was not holding valid and effective driving licence. He has also submitted that, in case, the rider was holding valid and effective driving licence, he would have produced the same before this court and respondent No.1 who is owner of the motor cycle would have produced the same and he has not produced the driving licence before this court and he has not assisted the respondent No.2 to contest the claim petition and he has not discharged his statutory obligations. He has relied upon decision of Hon'ble High Court in MFA No.23432/2011 (MV) (Smt.Haseenabanu and others Vs. Mazbool Ahamad Fakruddin Killedar and others). In the said decision, one Saifuddin died in the road traffic accident and he was proceeding as pillion rider on the motor cycle and in that case, false complaint was lodged by the complainant and police records were created and Hon'ble High Court has directed the Director General of police to hold an enquiry against the Officers, who have SCCH - 11 16 MVC No.705/2014 investigated and filed a false charge sheet. He has also relied upon Judgment of Hon'ble High Court in MFA No.9169/2005 (MV) C/W. MFA No.11116/2005 (MV), in the said judgment, the tribunal awarded compensation of Rs.73,600/- against claim of Rs.4,00,000/- which was challenged before Hon'ble High Court in the appeal and in the said judgment, Hon'ble High Court has observed that, after critical evaluation of the material on record and after perusal of the written statement and also the charge sheet it is clear that, the driver was not holding driving licence on the date of accident and he has been prosecuted in the criminal proceedings. The tribunal has committed a grave error in fastening liability on the insurer. He has also referred judgment of Hon'ble High Court in MFA No.9053/2007 (MV) between Branch Manager, Oriental Insurance Co. Ltd., Vs. Smt. Kepamma, W/o. Later Sannegowda and others. In the said case, the tribunal awarded compensation of Rs.9,51,333/- along with interest which was challenged before Hon'ble High Court and Hon'ble High Court has held that, with an intention to get compensation, the claimants and respondent No.1 and the SCCH - 11 17 MVC No.705/2014 owner of the motor cycle colluded with each others to dupe the Insurance company as it is a case of self accident as the deceased himself fell down on account of skid of motor cycle, while he himself was riding the motor cycle and the accident taken place due to the negligence of deceased himself and set aside the judgment and award passed by the tribunal. He has also relied upon decision reported in I.L.R 2015 KAR 2064 (Mohammed @ Mohd. Haneef Vs. Mallayya @ Mallappa and Another) in which it is held that, "a person holding a licence to drive a LMV (NT) vehicle has no authority or competence to drive the LMV (TP) vehicle". In the said decision "it is held that, as per the amendment, medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle and heavy passenger motor vehicle were also included in the definition of transport vehicle". It is also held in the said decision that, "the driver had no licence to drive transport vehicle, which was used for carrying passengers, he had no competency to drive such vehicle and there is breach of the conditions of the policy. It is justified in directing owner to pay the SCCH - 11 18 MVC No.705/2014 compensation". The Hon'ble High Court has also referred the decision of (National Insurance Co. ltd., Vs. Smt. Rathnamma and Others) 2012 Kant M.A.C. 179 (Kant). He has also referred the judgment of Hon'ble High Court reported in MFA No.7102/2007 (MV) (The Oriental Insurance Co. Ltd., Vs. Smt. Velliyamma and others). In the said decision victim died in the road traffic accident due to the negligence of the driver and tribunal awarded the compensation which was challenged in appeal and it has been said aside by the Hon'ble High Court. He has also referred judgment of Hon'ble High Court in I.L.R 2011 KAR 2827 (Vishwanath Shetty Vs. Vincent Pinto and another) wherein it is held that, "A person driving any type of vehicle should possess valid licence to drive a particular vehicle with proper endorsement in his driving licence permitting him to drive the type of vehicle, whether it is transport vehicle or otherwise". In the said decision it is held that, "the driver of the offending vehicle did not possess valid driving licence to drive the transport vehicle as on the date of accident and the tribunal was justified in SCCH - 11 19 MVC No.705/2014 holding that, the owner has committed breach of terms and conditions of the policy and therefore the second insurer is not liable to indemnify the owner ".
He has also relied upon judgment of Hon'ble High Court of Karnataka in MFA No.21079/2009 C/w MFA Crob No.745/2009 (MV) (The Manager, Oriental Insurance Company Limited Vs. Smt. Ruksana Begum and others). He has also referred the decision of Hon'ble Supreme Court in 2009 ACJ 1411 ( Oriental Insurance Co. Ltd., Vs. Angad Kol and others) and in the said decision, it is held that, "Insurance company seeks to avoid its liability on the ground that driver did not possess a valid and effective driving licence. Driver had licence to drive 'LMV' whereas he was driving a goods transport vehicle. Definition of 'LMV' brings within its umbrage both 'transport vehicle' or 'omnibus' but a distinction between an effective licence granted for transport vehicle and passenger motor vehicle exists. Distinction between a 'LMV' and a 'transport vehicle' is evident. Licence to the driver was granted for 20 years, a presumption arises that it was meant for the SCCH - 11 20 MVC No.705/2014 purpose of a vehicle other than a transport vehicle". He has also relied upon judgment of Hon'ble Supreme Court reported in 1997 ACJ 1065 (United India Insurance Co. Ltd., Vs. Gian Chand and Others) in which it is held that, the driver was not holding valid and effective driving licence at the time of accident and Hon'ble Supreme Court has held that, the insurance company is not liable. He has also referred decision reported in 2011 A.I.R SCW 3625 (Jawahar Singh Vs. Bala Jain and Ors.) and in the said decision, it is held that, " minor was driving the motor cycle and caused the accident and it is held that, it is duty of the owner to ensure that, his motor cycle was not misused and liability to pay the compensation shifts on owner of motor cycle ". The learned counsel for petitioner has relied upon the judgment of Hon'ble High Court reported in MFA No.9308/2011 (MV) (United India Insurance Co. Ltd., Vs. Smt. Rathna and another). In the said judgment Hon'ble High Court held that, there must be clear evidence on the record of the case to that effect. Police charge sheet is not evidence to hold that, the driver of the insured vehicle SCCH - 11 21 MVC No.705/2014 had no driving licence as on the date of accident. He has also relied upon decision reported in (2012)4MLJ302, 2012(3) TAC764 in the said decision it is held that, "Insurance company shall not disown its liability to pay compensation to party when vehicle is covered by an Insurance policy at the time of accident".
17) On perusal of the charge sheet it is clear that, police have filed charge sheet against the driver of offending vehicle for the offences punishable under section 279, 338 of IPC and section 3 (1) R/W.S.181 of Motor Vehicles Act. The respondent insurance company has examined RW.1 who has stated that, he has investigated in crime No.149/2013 and after investigation, he has filed charge sheet against the rider for the offences punishable under section 279, 338 of I.P.C. In the cross-examination of RW.1, he has admitted that, in case of road traffic accident, he will verify driving licence, registration certificate and insurance policy. He has admitted that, the vehicle owner has provided those documents for inspection and registration certificate is in the name of respondent SCCH - 11 22 MVC No.705/2014 No.1 and the insurance policy is in the name of Hemanth Kumar. He has stated that, he has not given notice to the driver to produce his driving licence and owner of said vehicle told him that, the driver is not holding driving licence and he enquired to the driver and owner of the vehicle who told that, the driver was not holding driving licence and he has filed charge sheet against the driver of the vehicle. Though, the learned counsel for petitioner has contended that, the investigating officer has not issued notice to the driver of the vehicle and on the basis of the reply given by the owner of vehicle, he has filed charge sheet for the offences punishable under section 279, 338 of IPC and section 3 (1) R/W.S.181 of Motor Vehicles Act, said contention is not acceptable. Because, he has stated in his cross-examination that, he enquired the driver and owner who told that, the driver was not hold driving licence and he filed charge sheet against the driver of the vehicle. In case the driver was holding valid and effective driving licence, he would have produced the same before investigating Officer at the time of investigation and even he would have appeared before this court and contested SCCH - 11 23 MVC No.705/2014 the matter and would have produced the driving licence to prove the fact that, he was holding valid and effective driving licence. But, he has admitted the guilt and paid fine amount in criminal court which goes to show that, he was not holding driving licence and this fact is admitted by RW.1 in the cross-examination by learned counsel for petitioner. So, I answer issue No.2 in the affirmative.
18) ISSUE No.3: PW.1 has stated in her evidence that, in the said accident, he sustained fracture L/3 shaft Let Tibia, MCL and PCL Grade 3 injury right knee, Right Zymgomatic Arch fracture and she has undergone interlock nailing left tibia and above knee POP case for right knee. She was admitted in the Baptist Hospital from 23.12.2013 to 26.12.2013 and she was admitted in Sita Bhateja Hospital from 26.12.2013 to 31.12.2013. She has admitted that, as per Ex.P.7, she was admitted in Sita Bhateja Hospital on 21.4.2014 and discharged on 23.4.2014. She has stated that, the Sita Bhateja Hospital authorities have issued 2 discharge summaries. The petitioner has produced medical bills which are marked at SCCH - 11 24 MVC No.705/2014 Ex.P.3 and as per the said document, she has spent Rs.81,015/- for the purpose of treatment. So, I hold that, petitioner is entitled for medical expenses of Rs.81,015/-. Hence, petitioner is awarded the compensation of Rs.81,015/- under the head of medical expenses.
19) The petitioner has produced discharge summary issued by Sita Bhateja Hospital and as per the said document, she was admitted in the said Hospital from 26.12.2013 to 31.12.2013. She has also produced one more discharge summary which is marked at Ex.P.7 and as per said document, she was admitted in the Sita Bhateja Hospital from 21.4.2014 to 23.4.2014. The petitioner was totally admitted in the Hospital for the period of 9 days and during the period Hospitalization, she would have spent some amount towards food, nourishment, attendant charges and conveyance. The family members of petitioner would have also attended her while she admitted in the Hospital and they also would have spent some amount for food. So, I feel it just and SCCH - 11 25 MVC No.705/2014 proper to award the compensation of Rs.10,000/- under the head of food, nourishment, conveyance and attendance charges. Hence, petitioner is awarded the compensation of Rs.10,000/- under the head of food, nourishment, conveyance and attendance charges.
20) As per the discharge summary which is marked at Ex.P.6, she was admitted in Sita Bhateja Hospital from 26.12.2013 to 31.12.2013 and as per Ex.P.7, she was admitted from 21.4.2014 to 23.4.2014. Due to the accidental injuries, the petitioner would have lost some income and her family members would have lost their income during the period of hospitalization. Considering the period of hospitalization, treatment taken outpatient treatment by the petitioner, I feel it just and proper to award compensation of Rs.10,000/-. Hence, the petitioner is awarded the compensation of Rs.10,000/- under the head of loss of income during hospitalization.
SCCH - 11 26 MVC No.705/2014
21) As per the evidence of PW.2, petitioner has
undergone inter lock nailing left tibia and above knee POP cast for right application under SA on 27.12.2013 and on 31.12.2013, LA administrated 1cm right lateral eyebrow skin incision given, zygomatic arch reduction done and ORIF wrist right zygomatico maxillary suture using 1.5 mm 2 holed as plate with 1.5 X 8 mm ss screws irrigation with betadine and saline. As per his evidence, he has examined the petitioner and assessed disability as per guidelines issued by the Ministry of Social Justice and Empowerment, Government of India notification. On perusal of the cross- examination of PW.2, implants are still in situ and he has maintained clinical note which is with patient. As per his evidence, mild pain in left knee and instability in her right knee. He has admitted that, fractures are united and in order to reduce the pain, he has advised to remove the nail. Due to the accidental injury, petitioner has to undergo deep pain and agony and she has to suffer physically and mentally throughout her life and though, fracture are united, she has to suffer throughout her life. Considering this fact, I feel it just and proper to award the SCCH - 11 27 MVC No.705/2014 compensation of Rs.30,000/- under the head of pain and agony. Hence, petitioner is awarded the compensation of Rs.30,000/- under the head of pain and agony.
22) On perusal of the oral evidence of PW.2, though fractures are united, the implants are still in situ and the petitioner has to undergo pain and agony. She has to suffer physically and mentally throughout her life. She is unable to enjoy the amenities in life and she has to undergo pain and agony while carrying out her routine activities and she cannot do her work as effectively as earlier. Considering this fact and as petitioner has lost some amenities in life and he has to depend upon others for day to day activities, it is just and proper to award the compensation of Rs.30,000/- under the head of loss of amenities. Hence, the petitioner is awarded the compensation of Rs.30,000/- under the head of loss of amenities in life.
SCCH - 11 28 MVC No.705/2014
23) PW.1 has stated in her evidence that, she is
aged about 19 years and having family consisting of her mother and she was hale and healthy at the time of accident and she was working as a cashier in Big Straw, a cafe and earning an amount of Rs.14,000/- per month and she is the bread earner in her family. She has stated that, due to the accident, she has become disabled and she is not in a condition to work permanently, so as to earn for her livelihood and she has deprived of all amenities. In the cross-examination of PW.1, she has stated that, she was working as cashier in Big Straw and there will be sale of cold drinks and one Sri. Asish Mehathri as owner of Big Straw. She has stated that, she was working in Big Straw since last 3 months prior to the date of accident and she has no impediment to examine her employer before this court and her employer was making payment of salary through online and she is having account in Bank of India and she has no impediment to produce her bank statement from the date of her employment till this day. She has stated that, her employer has not given appointment order to her. The respondent insurance company has examined SCCH - 11 29 MVC No.705/2014 Miss. Vidya Pai as RW.3 who has stated that, she is doing the business of specialized juice tea in the name of Big Straw and she has taken licence from BBMP to run juice shop. She has also stated that, she had not given offer to the petitioner to attend the work after the accident and she was giving salary of Rs.14,000/- to the petitioner and she was working on full time job and she does not know that, whether petitioner was a student of not when she was doing full time job under her and presently, petitioner is working under her on part time job and she is paying monthly salary of Rs.6,500/- to the petitioner and now, petitioner is attending college. She has produced Ex.P.5 and as per the said document, the petitioner was attending work and after 23.12.2013, she is not attending work. But, RW.3 has clearly stated in her evidence that, still petitioner is attending work and she is giving salary of Rs.6,500/- per month and petitioner is also attending college. On perusal of her evidence, it reveals that, earlier petitioner was working and getting salary of Rs.14,000/- per month as full time job and now, she is attending college and doing part time job under RW.3 and getting salary of Rs.6,500/-.
SCCH - 11 30 MVC No.705/2014 Even petitioner has not cross-examined RW.3 to show that, she is not attending work and she isnot attending college. This goes to show that, petitioner is still attending work and she is getting half of the salary which she was getting earlier and also attending college and she has not sustained any loss of income. As per the decision of decision reported in 2011(1) SCC 343 (Raj Kumar Vs. Ajay Kumar), Hon'ble Supreme Court has held as under -
"On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability. In fact, there may not be any need to award any compensation under the head of loss of future earnings. If the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequences of losing his hand".
So, the evidence adduced by the petitioner about disability given by PW.2 is not considerable and she is not entitled for compensation under the head of loss of income.
SCCH - 11 31 MVC No.705/2014
24) On perusal of the evidence of PW.2, he has not suggested any future surgery to petitioner and cost of future surgery. Hence, petitioner is not entitled for any compensation under the head of future medical expenses.
25) The petitioner is entitled for compensation under different heads which is calculated as under:
1) Towards Medical expenses Rs. 81,015/-
2) Towards food, Conveyance, Rs. 10,000/-
nourishment and attendant
3) Towards loss of income Rs. 10,000/-
during laid up period
4) Towards loss of pain & agony Rs. 30,000/-
5) Towards Loss of amenities in life Rs. 30,000/-
TOTAL Rs.1,61,015/-
[
As discussed in issue No.2 in detail, as on the date of accident, the driver of the offending vehicle was not holding driving licence and insurance company is not liable to pay the compensation to the petitioner.
SCCH - 11 32 MVC No.705/2014 The respondent relied upon decision reported in 1997 ACJ 1065 (United India Insurance Co. Ltd., Vs. Gian Chand and Others) in which it is held that, the driver was not holding valid and effective driving licence at the time of accident and the insurance company is not liable to pay the compensation. Since, the driver was not holding valid and effective driving licence as on the date of accident, insurance company is not liable to pay compensation to the petitioner. So, the petitioner is entitled for compensation of Rs.1,61,015/- along with interest at the rate of 6% per annum from the date of petition till its realization. The respondent No.1 is owner of the offending vehicle is liable to pay the compensation to the petitioner. So, I answer issue No.3 in partly affirmative.
26) ISSUE No.4: In view of answers to issues No.1 to 3 and preliminary issue, I proceed to pass the following:
SCCH - 11 33 MVC No.705/2014
ORDER
The petition filed under Section 166 of
M.V. Act is partly allowed with costs.
The petitioner is entitled to
compensation of Rs.1,61,015/- along with interest at the rate of 6% p.a. from the date of petition till complete realization.
The respondent No.1 is hereby directed to deposit the entire amount with accrued interest, within one month, from the date of this award.
On deposit of compensation amount, since it is meager amount, entire amount shall be released to the petitioner by means of account payee crossed cheque, on proper identification and verification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Typed to my dictation the Stenographer, corrected and pronounced by me in open court on this 31st day of December, 2015.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM SCCH - 11 34 MVC No.705/2014 ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Shanwaz PW.2 - Mr.Ajay Rao DOCUMENTS MARKED FOR PETITIONERS: Ex.P.1 - CC of Order sheet Ex.P.2 - CC of charge sheet Ex.P.3 - 12 medical bills Ex.P.4 - One pay slip Ex.P.5 - 45 medical bills Ex.P.6 - Discharge summary Ex.P.7 - Discharge summary Ex.P.8 - X-rays report Ex.P.9-16 - 8 MRI scan X-rays Ex.P.17 - Disability certificate Ex.P.18-27 - 10 X-rays WITNESSES EXAMINED FOR RESPONDENTS : RW.1 - S. Srinivasalu RW.2 - Smt.Prathiba RW.3 - Vidya pai RW.4 - Chandra Shekar H.M DOCUMENTS MARKED FOR RESPONDENTS : Ex.R.1 - True copy of insurance policy SCCH - 11 35 MVC No.705/2014 Ex.R.2 - Office copy of letter Ex.R.3 - One postal receipt Ex.R.4 - One Postal acknowledgment
Ex.R.4(a) - Endorsement issued by ARTO, RTO Ex.R.5 - Attendance machine log out and log in print I ADDL.SCJ. & MACT.