Bangalore District Court
Prashanth vs Ramanatha Shenoy on 23 February, 2015
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY.
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.1979/2004
Dated this the 23rd day of February 2015.
Petitioner/s : 1. Prashanth,
S/o G.K.Bhat,
aged about 22 years,
2. G.K.Bhat,
S/o late Vittaldas Bhat,
aged about 48 years,
3. Sulochana,
W/o G.K.Bhat,
aged about 40 years,
All are residing at :
Kodembettu village & post,
Bantwal Taluk, D.K.District.
( By pleader Sri RK)
Vs.
Respondent/s: 1. Ramanatha Shenoy,
S/o Manjunatha Shenoy,
aged about 31 years,
R/at : No.31,
Lakshmivenkateshwaranilaya
4th main, Peenya II stage,
SCCH-14 2 MVC No.1979/2004
Bangalore-560058.
(Exparte)
2. National Insurance
Company Ltd.,
Shankar building,
Mosque Road,
Udupi-576101
(By pleader Sri KS)
(Basavaraj Chengti)
XVI ADDL.JUDGE.,
Court of Small Causes & MACT.,
Bangalore.
SCCH-14 3 MVC No.1979/2004
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act for grant of compensation for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
On 14.07.2003 at about 05.00 P.M., to 5.30 pm, the petitioner No.1 Prashanth was riding Kinetic Honda bearing No.KA-02-W-8625 with a pillion rider Kum.Jayasheela. They were returning home from college on Bangalore-Bellary National Highway. When they came near Bagalur cross, the petitioner No.1 was riding the vehicle on left side of the road and at that time, Lorry bearing No.KA-20-7661 came from the opposite direction in high speed, in rash and negligent manner and dashed against the petitioner's motorcycle. Due to impact, the petitioner No.1 and his pillion rider fell down and sustained grievous injuries. Immediately, the petitioner No.1 was taken to Shushrutha Nursing Home, Yelahanka and then, he was shifted to Mallige Medical Center at Crescent road, Bangalore, wherein he was admitted as an inpatient. The petitioner No.1 did not regain consciousness for 28 days and on the 29th day, he slowly recovered from the head injury and regained memory. He underwent surgery for right leg with implants and physiotherapy treatment was given to right hand and right shoulder of which a nerve was badly damaged and he partially lost sensation and SCCH-14 4 MVC No.1979/2004 strength of the right hand and was discharged with an advice to take follow up and physiotherapy treatment for another 6 months and to take bed rest. Thereafter, on 06.02.2004, the petitioner No.1 was admitted in Shushrusha Citizens Co- Operative Hospital, Mumbai as an inpatient, wherein he underwent surgery for right shoulder and right hand and discharged on 11.02.2004 with an advice to take follow up treatment and bed rest. He requires one more surgery in future. The petitioner No.1 sustained head injury, multiple fracture of right leg, right hand, right shoulder and right lung. The petitioner No.1 was aged 22 years, was studying 3 rd year Engineering at Sri Visveswaraiah Technical Institute, Yelahanka, Bangalore. Due to accidental injuries, the petitioner has not recovered from the head injury and his memory power was not regained to the fullest extent and he is unable to walk properly and unable to move his right hand and he has become handicapped. His further studies become stand still. The petitioner no.2 and 3 are the parents of the petitioner No.1. They have incurred the following expenses:
1. Hospital Charges and Medicine Expenses at Mallige Medical Center Bangalore. Rs.4,00,212/-
2. Physio Therapy treatment at Vijaya Nursing Home, Moodabidre. Rs. 7,240/-
3. Hospital charges and medicine charges At Sushrutha Citizens Co-operative Hospital, Mumbai. Rs.65,800/-
4. Ambulance charges and conveyance Charges. Rs.22,000/-
5. Hospital attendant's expenses Rs.15,000/-SCCH-14 5 MVC No.1979/2004
Total Rs.5,10,252/-.
The petitioner no.2 availed education loan of Rs.2,00,000/-, and out of which a sum of Rs.1,13,132/- is still liable to be paid.
The petitioner no.1 is unable to carry out any job, employment of business or any useful work on account of head injury sustained by him due to the accident. Yelahanka Police have registered Cr.No.236/2003 against the driver of lorry bearing No.KA-20- 7661 for the offences punishable U/Sec.279, 337 of IPC. The respondents are the owner and insurer of the said lorry and are liable to pay compensation. Hence, the petitioners have sought for awarding compensation of Rs.35,80,252/- with interest to the respondents.
3. In pursuance of the notices, the respondents have appeared before the court through their respective counsel. The respondent no.2 has filed statement of objections denying the averments of petition as false, but he has admitted that the issuance of policy in favour of respondent no.1 in respect of lorry bearing No.KA-20-7661. He has contended that the insured and the police have not complied with their mandatory duties, that the respondent No.1 is attempting to help the petitioners to make claim, that the petitioner No.2 and 3 are not necessary parties, that the petitioner No.1 was solely responsible for the accident and has contributed more than 95%, the averments of the petition regarding difficulties of the petitioner No.1 are false as vital organs are not affected and the petitioner No.1 has not suffered any permanent disability or financial loss, that the driver SCCH-14 6 MVC No.1979/2004 of lorry had driving license upto 18.04.2003 and he got renewed his licence from 23.07.2003 to 22.07.2006, that he was not holding effective driving license on the date of accident, that he is not liable to pay compensation to the petitioners. Hence, he has sought for dismissal of the petition.
4. On the basis of above pleadings, the following issues have been framed by my predecessor- in- office:
ISSUES
1. Whether the petitioners proves that he was injured in the accident arising out of the use of the motor vehicle No.KA-05-W-8625 kinetic Honda on 14.07.2003 at about 05.30 pm?
2. Whether the petitioners is entitled to compensation? If so, how much and from whom?
4 What Order?
5. During the evidence the petitioners have examined the petitioner no.1 and 2 as PW.1 and 2 and they have examined two more witnesses as PW-3 and 4 and got marked documents as Ex.P1 to Ex.P36. The respondent no.2 has examined RW.1 and got marked documents as Ex.R1 and 2. After hearing the arguments, this court vide Judgment dated: 10.05.2007, has allowed the petition in part awarding compensation of Rs.13,19,200/- with interest @ 6% pa, Being aggrieved by the Judgment and Award, the petitioners and the respondent No.2 have filed MFA no. 13408/2007 and 12440/2007 respectively before Hon'ble High Court. After hearing both sides, Hon'ble SCCH-14 7 MVC No.1979/2004 Court was pleased to allow the appeal vide Judgment dated:10.06.2014 and remitted the matter back to this court for fresh disposal after providing opportunity to both parties for adducing further evidence. Accordingly, the matter is restored to its original number. The parities have not appeared before court on the date fixed by Hon'ble High Court i.e., on 07.07.2014.
Hence, notices were issued to both parties. The petitioners and the respondent No.2 have appeared before the court through their counsel. The respondent No.1 remained absent in spite of service of notice by substitute method i.e., by affixture and hence, he placed exparte. The petitioners have not chosen to adduce further evidence. The respondent No.2 has examined his officer as RW-2. He has made attempt to examine Kum.Jayasheela and investing officer in Cr.No.263/2003, but the witnesses have not appeared before the court. The respondent No.2 has not taken coercive steps against the witnesses and side of the respondent No.2 was closed.
6. Heard the arguments. The counsel for the respondent No.2 has filed written arguments also. The petitioners have relied upon following rulings:
1. 2009 STPL(LE) 41876 SC : Smt. Sarla Verma & Ors., Vs. Delhi Transport Corporation and Anr., )
2. 2014 STPL(Web) 547 SC : (Saraladevi & Ors., Vs. Divisional Manager, Royal Sundaram Alliance Ins., Co.
Ltd., & Anr.,)
3. 2014 SC 732 : ( Anvar P.V vs. P.K Basheer and others) SCCH-14 8 MVC No.1979/2004
4. 2014 SC 643 : ( Ashvinbhai Jayantilal Madi Vs. Ramkaran Ramchandra Sharma) The counsel for respondents have cited so many rulings in his written arguments, but he has not produced those citations before the court and hence, opinion can not be given in that regard. I have gone through the above mentioned rulings and perused the records.
7. My findings on the above issues are as under:
Issue No.1: In Negative
Issue No.2: In Negative
Issue No.3: As per final order
For the following;
REASONS
8. Issue No.1: PW-1 to 4 on behalf of the petitioners and RW-1 and 2 for the respondent No.2 have deposed before the court. Ex.P1 to 36 for the petitioners and Ex.R1 and 2 for the respondent No.2 have been marked. The respondent No.1 remained exparte. The admitted or undisputed facts of the this case are that the respondent No.1 is the driver cum owner of the Lorry bearing No.KA-20-7661, that his lorry was insured with the respondent No.2 and the policy was in force on the date of accident, that Yalahanka police have registered Cr.No.236/2003, in respect of the accident, investigated the matter and filed chargesheet against the respondent No.1 for the offences punishable U/s 279, 337, 338 of IPC and U/s 187 of MV Act, that on the basis of said chargesheet, CC No.3785/03 was registered SCCH-14 9 MVC No.1979/2004 wherein the respondent No.1 has appeared and admitted his guilt before concerned MMTC, Bangalore and was sentenced to pay fine. The pleadings of the petitioners and respondent No.2, evidence of PW-1, 2, of RW-1, 2 and contents of Ex.P1 to 9 and Ex.R2 confirm the existence of above mentioned facts. Ex.P22 is copy of DL which reveals that the petitioner No.1 was holding a valid and effective driving licence to ride Kinetic Honda on the date of accident. Ex.P23 is copy of SSLC marks card which discloses that the petitioner No.1 was born on 08.03.1982 which means the petitioner No.1 was aged 21 years on the date of accident. Ex.R1 is the driving licence extract which goes to show that the respondent No.1 was holding a valid and effective driving licence to drive a lorry from 19.04.200 to 18.04.2003 and from 23.07.2003 to 22.07.2006. This establishes that the driving licence of the respondent No.1 was lapsed on the date of accident and it was got renewed by him subsequently. The respondent No.2 has produced documents at the time of arguments which are pertaining to information given by Yelahanka Traffic police. The enclosures reveal that the said police station was not in existence on the date of accident. It is to be noted that the case was registered in Cr.No.236/2003 of Yelahanka Police station, whereas the respondent No.2 applied for information from Yelahanka Traffic police which was established subsequent to accident. Hence, question of availability of information about accident in Yelahanka Traffic police station does not arise. Thus, those unmarked documents do not help the respondent No.2 to prove his defence.
SCCH-14 10 MVC No.1979/20049. PW-1 : Prashanth and PW-2 G.K.Bhat have reiterated the averments of the petition as to manner of accident and its result. PW-3 Dr.V.T.Venkatesh and PW-4 Dr.Nagaraj are the doctors and they have deposed about the injuries caused to the petitioner and about the disability suffered by him due to such injuries. RW- 1 Laxman Rao and RW-2 Syed Yusuf have deposed as per the defence setup by the respondent No.2 and stated that the accident has not occurred as deposed by the petitioners, that the insured vehicle is not involved in the accident, but it is falsely implicated in the accident to have wrongful gain. Ex.P1 to 36 partly corroborate the evidence of PW-1 to 4, whereas the evidence of RW-1 and 2 is supported by the contents of Ex.R1 and 2 and of case sheet of Mallige Medical centre at Ex.P34, but evidence of PW-2, RW1 and 2 as to manner of accident is inadmissible as their evidence is hearsay, but evidence of PW-2 to 4 is admissible as to result of accident i.e., nature of injuries caused to the petitioner No.1 and extent of disability suffered by him due to injuries. Evidence of PW-1 regarding manner of accident finds support from police records at Ex.P1 to 9. PW-2 has filed complaint as per Ex.P1 and set the law in motion. Ex.P2 to 9 are copies of police records which disclose the filing of charge sheet against the respondent No.1, registration of criminal case against him, plea of guilt by him, sentence of fine imposed and payment of fine by the respondent No.1. Ex.P10, 17, 26 and 27 are the copies of wound certificate, discharge summary and discharge cards which reveal that the petitioner sustained following injuries;
SCCH-14 11 MVC No.1979/20041. Severe diffuse axonal injury
2. Type III compound fracture right patella, compound fracture of right tibial condyle
3. Fracture clavicle with right haemithorax
4. Right brachial plexus injury and right common peroneal palsy
5. Fracture of lateral malleolus of right of right ankle.
History of injuries is mentioned as road traffic accident in medical records. The injuries caused to the petitioner No.1 are termed as grievious. Evidence of PW-1 to 4 is believable as to injuries which is corroborated by the contents of Ex.P10, 17, 26, 27 and 34. Police records at Ex.P1 to 9 support the version of PW-1 that he sustained injuries on 14.07.2003 at about 5.00 pm near Bagalur cross, on Bangalore-Bellay road, Bangalore in a road traffic accident. Evidence of RW-1 and 2 is not sufficient to rebut the oral and documentary evidence of the petitioners in that regard. Delay in lodging FIR is not a ground to disbelieve the fact that the petitioner No.1 sustained injuries on the said date, time and place in a road traffic accident. Therefore, I hold that the petitioners have proved that the respondent No.1 met with an accident on 14.07.02003 at about 05.30 pm, near Bagalur cross, on Bangalore-Bellary road, Bangalore and sustained grievous injuries.
10. PW-1: Prashanth has specifically stated that the accident has occurred due to rash and negligent driving of the SCCH-14 12 MVC No.1979/2004 driver of lorry bearing No.KA-20-7661. PW-2 G.K.Bhat has supported the version of PW-1, but he is not an eye witness to the accident and hence, his evidence is inadmissible and unreliable. FIR is lodged by PW-2 on 26.07.2003. PW-1 was in Mallige hospital till 29.08.2003. There is no dispute as to involvement of Kinetic Honda bearing No.KA-02-W-8625 in the accident. The respondent No.1 is owner cum driver of lorry bearing No. KA-20-7661 and he has admitted his guilt before MMTC, Bangalore as to causing accident to the respondent No.1 by driving his lorry in rash and negligent manner. The respondent No.2 has disputed the involvement of Lorry bearing No.KA-20-7661 in the accident. However, he has admitted that the said lorry was insured with him and the policy was in force on the date accident, but has contended that in order to get compensation, the petitioners colluded with the respondent No.1 and police and got implicated the lorry in the accident. RW-1 Laxman Rao and RW-2 Syed Yusuf have deposed about the said facts. Their evidence is based on records. Their evidence is inadmissible as to manner of accident, but is believable to the extent which is corroborated by other evidence on record. Ex.R1 and 2 are not sufficient to believe the false implication of the lorry, but documentary evidence produced by the petitioners goes in favour of the respondent No.2.
11. It is evident that the police have investigated the matter and filed charge sheet against the respondent No.1 regarding the accident, that the respondent No.1 has admitted his guilt before concerned court, but it is settled law that filing of SCCH-14 13 MVC No.1979/2004 charge sheet and plea of guilt by charge sheeted driver are not exclusive grounds to believe that the accident was due to rash and negligent driving of the said driver and that the vehicle shown in the charge sheet is involved in the accident. They may be one of the factors to decide the fact in issue. The court may depart from the final report of the police. The negligence aspect has to be decided on the basis of evidence before the court and not on the basis of conviction order passed by MMTC on plea of guilt. Admission of guilt by the charge sheeted driver sometimes indicate the collusion between the parties to have wrongful gain from Insurance Company.
12. The accident has occurred on 14.07.2003 at about 05.30 pm. The petitioner No.1 was proceeding on Kinetic Honda bearing No. KA-02-W-8625 with one Jayasheela at that time. The petitioner No.1 was taken to Mallige Hospital on the same day at 06.45 pm and he was there as an inpatient till 29.08.2003. PW- 1 : Prashanth has stated that he was unconscious for 28 days and regained conscious on 29th day which falls on 10.08.2003, but case sheet at Ex.P34 discloses that the petitioner No.1 regained conscious on or before 05.08.2003 and was obeying commands. PW-2: G.K.Bhat is the father of the petitioner No.1 and he lodged complaint on 26.07.2003 at 02.45 pm stating that an unknown lorry has caused accident to Kinetic Honda bearing No. KA-02-W-8625 on wherein his son Prashanth and pillion rider Jayasheela sustained severe injuries, that friends of his son and public took the injured persons to nearby Shushrutha Nursing Home, Yelahanka and then, shifted them to Mallige Medical SCCH-14 14 MVC No.1979/2004 Centre in Ambulance. It is relevant to mention the portions of first information given by PW-2 which reads as under;
" vÁjÃRÄ 14.07.2003 gÀAzÀÄ PÁ¯ÉÃf£À°è ¥ÀjÃPÀÉë ªÀÄÄV¹PÉÆAqÀÄ ¸ÀAeÉ 5.00-5.30 gÀ ¸ÀªÀÄAiÀÄPÉÌ PÁ¯ÉÃf¤AzÀ ºÉÆgÀlÄ AiÀÄ®ºÀAPÀ £ÀÆåmË£ï £À°ègÀĪÀ vÀ£Àß gÀÆAUÉ §gÀÄwÛgÀĪÀÁUÀ ¨ÉAUÀ¼ÀÆgÀÄ §¼Áîj gÀ¸ÉÛAiÀÄ°è ¨ÁUÀ®ÆgÀÄ PÁæ¸ï §½ PÉ£ÉnPï ºÉÆAqÁ ¢éZÀPÀæ ªÁºÀ£ÀªÀ£ÀÄß £ÀqɹPÉÆAqÀÄ §gÀÄwÛgÀĪÁUÀ JzÀÄgÀÄ §¢¬ÄAzÀ §AzÀÄ ¯Áj Cw ªÉÃUÀªÁV ªÀÄvÀÄÛ CeÁPÀgÀÄPÀvɬÄAzÀ §AzÀÄ FvÀ£ÀÄ £ÀqɸÀÄwÛÀzÀÝ PÉ£ÉnPï ºÉÆAqÁ KA-02-W-8625 ªÁºÀ£ÀPÉÌ rQÌ ºÉÆqɬÄvÀÄ. ªÁº£À ZÁ®£É ªÀiÁqÀÄwÛzÀÝ £À£Àß ªÀÄUÀ ¥Àæ±ÁAvÀ F jÃw rQÌ ºÉÆqÀÉzÀ ¥ÀjuÁªÀĪÁV ©zÀÄÝ vÀ¯ÉUÉ eÉÆÃgÁV ¥ÉmÁÖVzÀÉ. C®èzÉ ªÀÄÆ¼É ªÀÄÄj¢zÉ ªÀÄvÀÄÛ ±Áé¸ÀPÉÆñÀPÉÌ eÉÆÃgÁV ¥ÉmÁÖVzÉ.
¸ÀzÀj PÉ£ÉnPï ºÉÆAqÁzÀ°è »A¢£À ¹Ãmï ( pillion rider) PÀĽwzÀÝ ¸ÀzÀj PÁ¯ÉÃf£À «zÁåyð¤ PÀĪÀiÁj dAiÀIJïÁ CªÀ½UÀÄÁ eÉÆÃgÁV KmÁVzÉ.
¸ÀzÀj C¥À¥sÁvÀ £ÀqÀÉzÀ ¸ÀݼÀ ¢AzÀ PÁ¯ÉÃfUÉ DzÉà gÀ¸ÉÛAiÀÄ°è §gÀÄwÛzÀÝ ºÀÄqÀÄUÀÄgÀÄ ºÁUÀÆ C°èAiÀÄ CdÄ ¨Áf£À d£gÀÄ Eªj§âgÀ£ÀÆß AiÀÄ®ºÀAPÀzÀ°ègÀĪÀ ±ÀıÀÄæµÀ aQvÀìÁ®AiÀÄPÉÌ PÀgÉzÀÄPÉÆAqÀÄ §AzÀÄ C°èAzÀ CªÀgÀ CA§Ä¯É£ïì£À°èè PÉæ¸ÉAmï gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ- 01 E°ègÀĪÀ ªÀÄ°èUÉ ªÉÄrPÀ¯ï ¸ÉAlgï D¸àvÀÉæUÉ PÀgÉzÀÄPÉÆAqÀÄ §AzÀÄ M¼ÀgÉÆÃVUÀ¼ÁV zÁR®Ä ªÀiÁrzÁÝgÉ".
SCCH-14 15 MVC No.1979/200413. The respondent No.1 has given statement before police after his discharge i.e., after 29.08.2003 to the effect that the accident was due to rash and negligent driving of driver of Lorry bearing No.KA-20-7661 in which he and pillion rider Jayasheela sustained injuries. The statement of Jayasheela is in corroboration with the statement of the petitioner No.1 as to manner of accident and involvement of Lorry bearing No.KA-20- 7661, but she has not stated as to causing of any injury to her in the accident. The police have recorded further statement of PW-2 who has stated about involvement of Lorry bearing No.KA-20- 7661 in the accident, based on the say of the petitioner No.1. So, it becomes clear that the police have filed charge sheet against the driver of lorry i.e., against the respondent No.1 based on the statement of the petitioner No.1, 2 and of Jayasheela. The copies of statements are at Ex.P1 to 3 under FIR and Charge sheet. Copy of sketch at Ex.P4 reveals that the lorry took a right deviation and dashed against the Kinetic Honda which was going straight towards Yelahanka. The sketch indicates that the accident was due to rash and negligent driving of the driver of other vehicle and that the petitioner No.1 was not at fault. As per Ex.P5, the police have drawn panchanama on 26.07.2003 in presence of the petitioner No.2, but there is some correction in the date /month in Ex.P5. Month 'July ' in the second line is over written. On careful perusal, it appears that the scribe started to write August ( DUÀ¸ïÖ), and after writing two letter i.e., 'CUÀ' he stopped and corrected it as July (dįÉÊ). Such correction is possible only when the document was written in the month of SCCH-14 16 MVC No.1979/2004 August by showing the month of the document as July. The said over writing indicates that the panchanama at Ex.P5 may be antedated. It is pertinent to note that none of the vehicles involved in the accident was detained under said panchanama. It can not be expected that the vehicles lie on the place of accident for 12-13 days. The petitioners have not produced copy of panchanama under which the vehicles are detained and the copy of IMV report. There is no explanation from the petitioners as to non production of same. IMV report is a material document which throws light regarding involvement of vehicles in the accident. The petitioners have produced copy of reply to Section 133 notice which is at Ex.P7. The respondent No.1 has admitted the involvement of his lorry and occurrence of accident under said reply, but it is already opined above that admission of the respondent No.1 is not sufficient to believe the involvement of lorry.
14. PW-1 : Prashanth has stated that students of his college noticed him and Jayasheela after the accident, took them to Shushrutha Nursing Home and then shifted to Mallige Medical Centre. He has further stated that after regaining conscious, he collected the lorry number from his classmates and students of his college and lodged further complaint. In cross examination, he has stated as under;
"I did not see the model, colour and number of offending vehicle which hit to my vehicle".SCCH-14 17 MVC No.1979/2004
PW-2 G.K.Bhat has stated that friends of his son telephoned him and narrated about the accident and causing of injuries to his son. He has not stated about involvement of Lorry bearing No.KA-20-7661 in the accident in his chief examination. In cross examination, he has stated as under;
"I had not seen this accident personally, some one informed me on phone about the accident. Immediately, I came to Bangalore. I have enquired friends of my son who had witnessed the accident. His friends have not given the lorry number, which caused the accident. I have also not enquired about the lorry number and its identification with them. I had lodged the complaint on 26.07.2003. As I was upset there is a delay in lodging the complaint. At the time of filing the complaint I was not knowing the said lorry number".
PW-1 has stated that he came to know about the particulars of lorry through his friends. He did not name them. PW-2 has deposed that none of the friends of his son gave the details of the lorry. If the friends of the respondent No.1 were knowing about the particulars of the lorry, they would have immediately informed the petitioner No.2 with their fresh SCCH-14 18 MVC No.1979/2004 memory. Nothing is stated by them to PW-2 till 26.07.2003 and thereafter. Only after discharge of the petitioner No.1, he was informed about the lorry by his friends. The sequence of events narrated by PW-1 and 2 in respect of involvement of Lorry bearing No.KA-20-7661 is inconsistent, absurd, unimaginable and unbelievable. It happens only when the injured and his relatives were waiting for a suitable vehicle to implicate. PW-2 explains that since, he was upset due to accident, he could not file complaint immediately. His explanation is improper and unacceptable. Such an explanation may be proper for delay of one or two days, but not for the delay of 12 days.
15. The medical records produced by the petitioners reveal that the petitioner No.1 was under treatment in Mallige Medical Centre from 14.07.2003 to 29.08.2003, in Vijay Clinic Moodibidari from 20.10.2003 to 28.11.2003 and in Shushrusha Citizens Co-op hospital, Mumbai from 06.02.2004 to 11.02.2004. PW-1 has categorically stated that after accident, he and Jayasheela were taken to Shushrutha Nursing Home, Yelahanka and then shifted to Mallige Medical Centre, Bangalore. So, medical records of those two hospitals play an important role to decide the issue. The petitioners have not produced any record pertaining to first aid given to the petitioner No.1 in Shushrusha Nursing Home, Yelahanka and pertaining to injuries caused and treatment taken by Jayasheela. Non production of such documents creates doubt. Non production of IMV report of vehicles involved in the accident strengthens the doubt.
SCCH-14 19 MVC No.1979/200416. PW-3 Dr.Venkatesh is the Medico legal consultant of Mallige Medical Centre and he has produced disability certificate and case sheet pertaining to the petitioner No.1 which are marked as Ex.P33 and 34. On careful perusal of case sheet at Ex.P34, it reveals that one Dr.R.M.Verma has recorded the history of injuries of the petitioner No.1 when he was brought to hospital on 14.07.2003, that on the same day, one Dr.R.Ravindra has also recorded the history of injuries of the petitioner No.1, it further reveals that the petitioner No.1 was admitted under the unit of Dr.R.M.Verma and MLC intimation was sent to police on the same day. In fact, history recorded by Dr.R.Ravindra reveals that the petitioner No.1 was taken to Mallige Medical Centre hospital by the police. The history recorded by those doctors read as under;
Dr.R.M.Verma ;
" H/o road traffic accident b/w Toyota qualis and two wheeler this evening brought by police after first aid in Yalahanka".
Dr.R.Ravindra ;
"H/o of RTA, collusion between two wheeler and qualis this evening, brought by police after first aid in Yalahanka".
The contents of Ex.P34 mentioned above clearly reveal that one Toyota Qualis is involved in the accident. If the said vehicle is not involved, there was no occasion for those two doctors to mention it in the history. If the Lorry bearing No.KA-
SCCH-14 20 MVC No.1979/200420-7661 was really involved, the doctors would have noted the same in the history sheets. There is nothing on record to believe that the history of injuries noted by the said doctors is incorrect. The counsel for the petitioners has argued that the respondent No.2 has not proved the contents of the case sheet by examining the doctors who wrote the history and sought for rejection of the history mentioned in Ex.P34. But, it is settled law that a party who produced a documentary evidence can not be permitted to take advantage of portion of document which is helpful to him and to discard the portion which is against his case. The petitioners have got summoned the case sheet from Mallige Medical Centre and it is marked as Ex.P34 for them. Now, the petitioners can not be permitted to dispute portions of Ex.P34 as incorrect. It is their document and it reveals that the accident was between a Toyota qualis and 2-wheeler. If the petitioners dispute that the history mentioned in Ex.P34 as false and incorrect, it is for them to prove the same by examining the concerned doctors. The burden was not on the respondent No.2 to prove that the history written in Ex.P34 by the doctors is true and correct. The contents of the Ex.P34 as to history prevail over police records. History regarding injures to the petitioner No.1 was recorded by the doctors much earlier to filing of complaint by the petitioner No.2. The entries made by the doctors in Ex.P34 clearly establish that a Toyota Qualis was involved in the accident and not a lorry. The said entries make it clear that the lorry of the respondent No.1 bearing No. KA-20-7661 is falsely implicated in the accident.
SCCH-14 21 MVC No.1979/200417. The entries made by the doctors in Ex.P34 reveal that the petitioner No.1 was brought to hospital by police. Summary sheet in Ex.P34 discloses that MLC intimation was sent to police on 14.07.2003. Then, it was the duty of the police to record information about the accident and to register a crime in that regard immediately either on the very day or on 15.07.2003. Their failure to do so clearly indicates that there was some problem with the offending vehicle. That is why, the police and the petitioner No.2 waited till 26.07.2003 to set the law in motion. Their search for suitable vehicle might have completed only after discharge of the petitioner No.1. Ex.R1 and 2 reveal that the respondent No.1 is from Udupi district. The petitioners are from D.K. district. The petitioners have shown the address of the respondent No.1 as Bangalore and not Udupi. This also creates doubt.
18. The oral evidence of PW-1 is corroborated by the contents of police records at Ex.P1 to 9 as to involvement of lorry bearing No. KA-20-7661 in the accident, but contents of case sheet at Ex.P34 clearly reveal that a Toyota Qualis and not the lorry bearing No. KA-20-7661 was involved in the accident. The police came to know about the accident on the same day, but they did not record the statement of the petitioner No.2 and of eyewitnesses immediately. The complaint filed by the petitioner No.2 on 26.07.2003 is highly belated. The delay in lodging complaint is not properly explained. Evidence of PW-2 is contradictory to the evidence of PW-1 as to information given by SCCH-14 22 MVC No.1979/2004 friends of the petitioner No.1 regarding involvement of lorry. IMV report of the vehicles and medical records pertaining to Jayasheela are not produced. Records pertaining to First Aid treatment at Shushrusha Nursing Home, Yelahanka are also not produced. The said pillion rider Jayasheela has not made any attempt to lodge complaint and to give details of the vehicle involved in the accident to the petitioner No.2. The respondent No.2 has made efforts to examine her, but failed. The particulars of the lorry were given to police after lapse of more than 1½ month. There is no direct evidence as to involvement of lorry bearing No. KA-20-7661 in the accident. Admissions of PW-1 and 2 mentioned above disclose that their evidence as to involvement of said vehicle is hearsay. The medical record at Ex.P34 reveals that a Toyota Qualis is involved in the accident. Therefore, I am of the opinion that the petitioner No.1 sustained grievous injuries on 14.07.2003 at 05.30 pm, near Bagalur cross, on Bangalore-Bellary road, Bangalore in a road traffic accident arising due to rash and negligent driving of driver of Toyota Qualis whose particulars were within the knowledge of the petitioner No.2, of friends of the petitioner No.1 and of the police, that lorry bearing No.KA-20-7661 was not involved in the said accident, that the accident was not due to rash and negligent driving of the respondent No.1, that the petitioners, the respondent No.1 and police have colluded together and falsely implicated the lorry in the crime and got filed charge sheet. In view of the said collusion, the respondent No.1 has admitted his guilt before MMTC, Bangalore and paid fine. Their collusion was SCCH-14 23 MVC No.1979/2004 only for getting compensation from the insurance company. Therefore, I disbelieve the evidence of PW-1 regarding manner of accident and involvement of lorry bearing No.KA-20-7661. Thus, the petitioners have failed to prove this issue and I answer the same in negative.
19. Issue No.2: The petitioners have failed to establish the involvement of lorry bearing No.KA-20-7661 and negligence of the respondent No.1 in the occurrence of accident. The evidence on record discloses that a Toyota qualis was involved in the accident. The respondents are the owner and insurer of the lorry. The insured lorry was not involved in the accident. The respondents are the owner and insurer of the said lorry. Since, the accident was not due to rash and negligent driving of said lorry by the respondent No.1, the claim of the petitioners against the respondents is not maintainable. The respondents are not liable to compensate the petitioners for the injuries sustained by the petitioner No.1 in the accident. However, I deem it necessary to decide this issue independently. If the petitioners were succeeded to prove the issue No.1, then the petitioner No.1 would be entitled for compensation as under:
20. PW-1 : Prashanth has stated about the injuries caused to him in the accident and about the treatment given to him in various hospitals. PW-2 G.K.Bhat is the father of the petitioner No.1 and he has deposed as per the averments of the petition. PW-3 and PW-4 Dr.B.N.Nagaraj are the doctors from Mallige Medical Centre and deposed as to injuries caused to the SCCH-14 24 MVC No.1979/2004 petitioner No.1 and the treatment given to him in their hospital. Evidence of PW-2 to 4 corroborate the evidence of PW-1 regarding injury and treatment, Copy of wound certificate, discharge summary, and discharge cards at Ex.P10, 17, 26 and 27 support the oral evidence of PW-1 to 4 and collectively reveal that the petitioner sustained following injuries;
1. Severe diffuse axonal injury,
2. Type III compound fracture right patella , compound fracture of right tibial condyle,
3. Bilateral pneumothorax
4. Septicemia
5. Right brachial plexus injury and right common peroneal palsy,
6. Close traumatic fracture lateral malleolus right.
Evidence of PW-1 to 4 and contents of Ex.P10 to 21, 26, 27, 30 to 36 reveal that the petitioner No.1 took treatment in Mallige Medical Centre for 47 days, in Alva's Health centre, Moodabidari for 25 days, in Shushrusha citizens co-op hospital, Mumbai for 10 days in two admissions, in Laud clinic, Mumbai for 4 days during the period from 04.07.2003 to 22.08.2006. Medical certificates and evidence of PW-3 and 4 disclose that the petitioner No.1 is suffering from permanent disability of 40% to whole body from his right upper and lower limbs and suffering from permanent neurological disability of 25%. Evidence of PW-1 and 2 indicates that the petitioner No.1 is suffering from various difficulties. PW- 3 and 4 confirm the existence of such difficulties which may persist throughout his life. Ex.P23 to 25 disclose that the SCCH-14 25 MVC No.1979/2004 petitioner No.1 was aged 21 years, was in 5 th semester of BE and was attending his examination as on the date of accident. Appropriate multiplier for the said age is 18. The marks cards reveal that the petitioner No.1 was an average student and was having backlogs. He lost 2 academic years. He would have completed his course by 2005 if the accident had not occurred. Ex.P28 reveals that the petitioners have availed loan for the education of the petitioner No.1 and it remained unpaid. An amount of Rs.1,57,905/- was due and payable by the end of March 2006. The petitioners have incurred additional interest due to the accident. The medical records indicate that the petitioner No.1 was under treatment till 2006. During the said period, he incurred expenses towards hospitalization, Physiotherapy, medicines, nourishment, conveyance, attendant charges. Train tickets are at Ex.P15 and 31. The petitioner No.2 might have lost income. He and his wife i.e., the petitioner No.3 are put to inconvenience, physical and mental stress due to the injuries caused to the petitioner No.1. PW-2 has stated that he borrowed loan from his relatives and friends to meet out medical expenses. Looking all these aspects, I am of the opinion that the petitioner No.1 would be entitled for a compensation of Rs.50,000/- towards pain and sufferings, Rs.25,000/- towards nourishment, Rs.15,000/- towards conveyance, Rs.10,000/- towards attendant charges, Rs.25,000/- towards loss of income, inconvenience and mental agony caused to his parents i.e., to the petitioner No.2 and 3.
SCCH-14 26 MVC No.1979/200421. The petitioners have produced medical bills which are marked as Ex.P11 to 14, 30, 32. Prescriptions are at Ex.P16. Case sheet of Mallige Medical Centre is at Ex.P34. The medical bills are supported by prescriptions, case sheet, X-ray, diagnostic report, wound certificate, Discharge summary and Discharge cards. Total amount of medical bills produced by the petitioners is Rs.9,90,231/-. Out of six sets of bills, there is nothing on record to disbelieve the first set of bills at Ex.P11 amounting to Rs.1,30,550/-. In medical bills at Ex.P12, bills at Sl.No.1 to 14 amounting to Rs.1,79,500/- are advance receipts. Final bill is at Sl.No.18 which covers the amount of advance receipts and hence, amount of those receipts i.e., Rs.1,79,500/- is liable to be deducted. On such deduction, net amount of medical bills at Ex.P12 comes to Rs.2,46,080/-. Medical bills at Ex.P13 also have same problem. Bills at Sl.No.3, 5 to 9 and 13 are deposit receipts and amount of those bills is to be deducted from total amount of medical bills at Ex.P13. On such deduction, net amount of bills at Ex.P13 comes to Rs.88,289/-. The total amount of medical bills at Ex.P14 is Rs.1,97,966/-. Among those bills, bill at Sl.No.8 for Rs.1,31,370/- is interim bill of Mallige Medical Centre which is covered under final bill at Sl No.18 of Ex.P12. Therefore, total amount of medical bills at Ex.P14 shall be reduced by Rs.1,31,370/-. On such reduction, the net amount of medical bills at Ex.P14 comes to Rs.66,596/-. Medical bills at Ex.P30 include physiotherapy bills amounting to Rs.30,000/-. Those bills may or may not be genuine, but looking to the injuries, period of treatment, etc, I am inclined to allow entire bills under Ex.P30 SCCH-14 27 MVC No.1979/2004 which amount to Rs.34,206/-. Medical bills amounting to Rs.26,790/- at Ex.P32 are believable. Thus, total amount of allowable medical bills comes to Rs.5,92,511/-. Hence, the petitioner No.1 would be entitled for a compensation of Rs.6,00,000/- towards medical expenses. Evidence of PW-2 as to borrowing of loans from friends and relatives to meet medical expenses of the petitioner No.1 is believable. He might have incurred interest over such borrowings which may be more than the interest that may be awarded by the court. Hence, the petitioner No.1 would be entitled for a compensation of Rs.50,000/- towards interest incurred on loans.
22. The petitioner No.1 was a student as on the date of accident. Hence, he is not entitled for any compensation towards loss of income during the period of treatment and bed rest. However, he lost academic years. Such a loss can not be compensated in terms of money, but notionally an amount of Rs.25,000/- would be awarded towards the same.
23. PW-1 has deposed about his difficulties due to accidental injuries. PW-3 and 4 confirm the same. PW-3 is medico legal consultant and PW-4 is an orthopedic surgeon. The respondent No.2 has disputed the competency of PW-3 to dispose regarding disability suffered by the petitioner No.1. It has made the petitioners to examine PW-4 who is a treated doctor. Evidence of PW-3 and 4 is corroborated by medical certificates at Ex.P20 and 33. However, clinical notes are not produced. Evidence of PW-3 and 4 is similar and both of them have SCCH-14 28 MVC No.1979/2004 assessed the permanent disability of the petitioner No.1 @ 40% to whole body and neurological disability @25%. Except bare denials, nothing is elicited from them to disbelieve the same. Right upper and lower limbs of petitioner No.1 are affected. There is no evidence that the petitioner No.1 is a left handed person. Right hand will be dominant limb which is affected to the extent of 90% coupled with disability to the extent of 30% to right leg. The petitioner No.1 is suffering from neurological deficit to the extent of 25%. Therefore, I am of the opinion that the calculation of disability made by PW-3 and 4 is correct and believable. The petitioner No.1 was a student of BE (Telecommunication). The physical disability of the petitioner No.1 may come in his way to lead normal life. Such disability affects the earning capacity of the petitioner No.1. Looking to the nature of disability, part of body affected by disability, the education of the petitioner No.1, I am inclined to assess the functional and occupational disability @ 25%. I am of the opinion that the earning capacity of the petitioner No.1 is reduced by 25%. Loss of future earning of the petitioner No.1 can be calculated on the basis of multiplier method by taking notional income into consideration. The case is of the year 2003. If notional income of Rs.5,000/- is considered, it would be meet the ends of justice. Annual income comes to Rs.60,000/-. Then, loss of future earning of the petitioner No.1 would be Rs.60,000X18X25%=Rs.2,70,000/-. He would be further entitled for a compensation of Rs.25,000/- towards loss of amenities and Rs.25,000/- towards loss of marriage prospects. Thus, the SCCH-14 29 MVC No.1979/2004 petitioner No.1 would be entitled for just and reasonable compensation of Rs.11,20,000/- with interest @9% pa from the date of petition till the date of payment.
24. The respondents are the owner and insurer of lorry bearing No. KA-20-7661. The policy was in force on the date of accident, but evidence of RW-1, 2 and contents of Ex.R1 disclose that the license of the respondent No.1 was lapsed and was not in force as on the date of accident. However, the license was renewed for a period of 3 years from 23.07.2003 i.e., subsequent to the accident. His license was lapsed on 18.04.2003. He ought to have renewed the license within one month. The respondent no.1 is the owner cum driver of lorry bearing No. KA-20-7661. He was knowing fully well that his license expires on 18.04.2003. In spite of it, he continued to drive the vehicle without getting his license renewed. The accident occurred on 14.07.2003. As on the said date, the respondent No.1 was not holding an effective driving license. Thus, the respondent No.1 has willfully violated the condition of policy. Hence, the respondent No.2 is absolved from indemnifying the insured and from paying compensation to the petitioner No.1. If the petitioners had succeeded to prove the issue No.1, then the petitioner No.1 would be entitled for compensation and interest as calculated above and the said amount would be recoverable from the respondent No.1. Since, there was willful default by the respondent No.1, the respondent No.2 can not be made liable to pay compensation. But, in this case, the petitioners have failed to prove the issue No.1 i.e., involvement of lorry bearing No. KA-20-7661, occurrence of SCCH-14 30 MVC No.1979/2004 accident due to negligent driving of the respondent No.1. The evidence of RW-1, 2 and contents of Ex.P34 establish that the petitioners, the respondent No.1 and the police colluded together and falsely implicated the lorry bearing No. KA-20-7661 in the accident with an intention to get wrongful gain from the respondent No.2. Therefore, I hold that the respondents are not under any obligation to pay any compensation much less the one calculated above to the petitioners. The claim petition is liable to be dismissed with cost. The petitioners are liable to pay cost and compensatory cost to the respondent No.2 for making an attempt to have wrongful gain and for dragging him to court unnecessarily. Consequently, I answer the issue in negative.
25. Issue No.3: In view of above discussion and findings, I proceed to pass the following;
ORDER The claim petition U/s 166 of Motor Vehicles Act filed by the petitioners is hereby dismissed with costs.
The petitioners are liable to pay compensatory cost of Rs.5,000/- to the respondent No.2.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 23th day of February 2015.) SCCH-14 31 MVC No.1979/2004 (Basavaraj Chengti) XVI ADDL.JUDGE., Court of Small Causes & MACT., Bangalore.
SCCH-14 32 MVC No.1979/2004ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Prashanth PW.2 G K Bhat PW.3 Dr.V.T.Venkatesh PW.4 Dr.B.N.Nagaraj Respondents RW1 R.Lakshmana Rao RW-2 Syed Yusuf ExP1 Complaint ExP2 FIR ExP3 Charge sheet ExP4 Sketch ExP5 Mahazar ExP6 Statement ExP7 Reply notice Exp8 Plea ExP9 CC No.3785/03 ExP10 Wound certificate ExP11 Medical bills ExP12 Medical bills ExP13 Medical bills ExP14 Medical bills ExP15 Train tickets ExP16 Prescriptions ExP17 Discharge summary ExP18 Letter ExP19 Details of treatment ExP20 Certificate issued by doctor ExP21 Diagnostic report ExP22 DL copy ExP23 SSLC marks card ExP24 Diploma marks statement ExP25 BE marks ExP26 Discharge card ExP27 Discharge card SCCH-14 33 MVC No.1979/2004 ExP28 Account extract ExP29 Photo with negative ExP30 Medical bills ExP31 Train tickets ExP32 Medical bills ExP33 Certificate ExP34 Case sheet ExP35 Doctor's certificate ExP36 X-ray Respondent's Ex.R1 DL Extract Ex.R2 Policy copy XVI ADDL.JUDGE., Court of Small Causes & MACT., Bangalore. SCCH-14 34 MVC No.1979/2004 Dt.23.02.2015 P-RK R1-Exparte R2-KS For Judgment Order pronounced in open court vide separate judgment. ORDER
The claim petition U/s 166 of Motor Vehicles Act filed by the petitioners is hereby dismissed with costs.
The petitioners are liable to pay compensatory cost of Rs.5,000/- to the respondent No.2.
XVI ADDL.JUDGE., Court of Small Causes & MACT., Bangalore.
SCCH-14 35 MVC No.1979/2004AWARD SCCH.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA:
BANGALORE CITY MVC No.1979/2004 Petitioner/s : 1. Prashanth, S/o G.K.Bhat, aged about 22 years,
2. G.K.Bhat, S/o late Vittaldas Bhat, aged about 48 years,
3. Sulochana, W/o G.K.Bhat, aged about 40 years, All are residing at :
Kodembettu village & post, Bantwal Taluk, D.K.District. ( By pleader Sri RK) Vs. Respondent/s: 1. Ramanatha Shenoy, S/o Manjunatha Shenoy, aged about 31 years, R/at : No.31, Lakshmivenkateshwaranilaya 4th main, Peenya II stage, Bangalore-560058.
(Exparte)
2. National Insurance Company Ltd., Shankar building, Mosque Road, Udupi-576101 (By pleader Sri KS) SCCH-14 36 MVC No.1979/2004 WHEREAS, this petition filed on by the petitioner/s above named U/sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for
the injuries sustained by the petitioner/Death of in a
motor Accident by vehicle No.
[
WHEREAS, this claim petition coming up before Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The claim petition U/s 166 of Motor Vehicles Act filed by the petitioners is hereby dismissed with costs.
The petitioners are liable to pay compensatory cost of Rs.5,000/- to the respondent No.2.
Given under my hand and seal of the Court this day of 2015.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
SCCH-14 37 MVC No.1979/2004
By the
__________________________________
Petitioner/s Respondent
No.1 No.2
__________________________________
Court fee paid on petition 10-00
Court fee paid on Powers 01-00
Court fee paid on I.A.
Process
Pleaders Fee _____________________________
Total Rs. ---------------------------------------
Decree Drafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN: BANGALORE
Decree Clerk SHERISTEDAR