Bangalore District Court
K.N.Shivanand vs United India Insurance on 23 November, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 23rd DAY OF NOVEMBER, 2015
PRESENT : Smt. K.KATYAYINI,
XIII Addl.Small Cause Judge
& Member MACT, Bengaluru.
MVC No.294 & 787/2011
Petitioner/s K.N.Shivanand,
In MVC.294/2011 S/o K.S.Nagaraju,
Aged 32 years,
Sri Gajamukha Jewellery
Works Kudur,
Kudur Hobli,
Magadi Taluk,
Ramanagara.
Petitioner/s Sri.Umesh,
In MVC.787/2011 S/o Hanumanthappa,
Aged 22 years,
Navagrama,
Kudur,
Magadi Taluk,
Ramanagara.
(By Pleader - Sri.Chandrashekar, R.)
V/s
Respondent/s 1.United India Insurance.
In both the cases Co.Ltd.,
Next to Magistrate Court,
Nrupatunga Road,
Krushi Bhavan,
Bengaluru.
Policy issued at:
United India Insurance
Co.Ltd.,
D.O.VI.No.89/1, II Floor,
(SCCH-15) 2 MVC.294 & 787/2011
11th cross, Sampige road,
Malleshwaram,
Bengaluru - 560 003.
(Policy
No.071600/31/10/02/000009
765 valid from 15.09.2010 to
14.09.2011)
(By Pleader - Sri.Girish Kodgi.)
2.Mahanthesh.N.K.
S/o Papanna,
No.1906,
Devanga Beedi,
Nelamangala Town & Taluk,
Bengaluru (R)Dist.
(By Pleader - Sri.B.Ramakrishna.)
*****
COMMON JUDGMENT
Petitioners in both the petitions have filed these
petitions under Section 166 of MV Act seeking
compensation on account of injuries they have suffered
in the road traffic accident.
2. The brief facts of the case of petitioners in both
the petitions are that on 02.01.2011 at about 8:30 p.m.,
petitioner in MVC.294/2011 being the rider and
petitioner in MVC.7887/2011 being pillion rider were
proceeding on the motor cycle i.e., star city bike bearing
(SCCH-15) 3 MVC.294 & 787/2011
registration No.KA-02 NT-0579 from Bengaluru to Kudur.
At that time, when they reached near Gudemaranahalli
near Bhadrapura cross, the luggage tempo bearing
registration No.KA-02 A-1919 came with high speed in a
rash and negligent manner from Kunigal towards
Bengaluru on the extreme right side of the road with high
speed and dashed to the motor cycle.
b) Because of which, both of them fell and suffered
severe injuries all over the body. Accident took place on
the rash and negligent driving of the luggage tempo
driver. Therefore, 2nd respondent being the owner and 1st
respondent being the insurer of the luggage tempo are
jointly and severally liable to pay the compensation.
Hence, prayed to allow the petitions as sought for.
3. In response to the due service of notices, both the
respondents put their appearance through their
respective counsels and filed their separate statement of
objections to the main petition denying the petition
averments. However, 2nd respondent has admitted his
ownership over the luggage tempo and contended that
(SCCH-15) 4 MVC.294 & 787/2011
accident is solely due to negligent riding of the motor
bike.
b) He has also contended that policy of the luggage
tempo was valid and in force with the 1st respondent. He
has not violated the policy conditions. Therefore, if any
compensation is awarded, then the liability should be
saddled on 1st respondent. Accordingly, prayed to dismiss
the petition against it with costs.
c) Per contra, 1st respondent even admitted the
policy and its force on the date of accident has contended
that the liability if any is subject to the terms and
conditions of the policy such as driving licence and
vehicular documents. It has specifically contended that
luggage tempo did not possess valid and effective driving
licence. Thereby there is breach of policy conditions.
d) In addition, it has contended that as per police
papers accident took place on 02.01.2011; complaint was
lodged on 05.01.2001; till date, vehicles were lying on the
spot and the same were seized on 05.01.2011. Neither
the petitioner nor the police have clarified as to the
(SCCH-15) 5 MVC.294 & 787/2011
presence of the vehicles on the spot without notice of the
police till the date of seizing.
e) It has also contended that even spot mahazar was
drawn on 05.01.2011, vehicles were seized on
07.01.2011. The Inspector failed to verify the documents
and has not described the nature of damages and the
mode in which he has tested the vehicle as to its braking
systems etc.
f) It has also contended that as per the petition
averments, accident took place at 8:30 a.m. However,
pillion riders' version is that the accident occurred at
9:30 p.m. However, rider went to the hospital on his
vehicle at 11:30 a.m. On the other hand, pillion rider was
brought to the hospital by somebody else that too at
11:30 p.m. i.e. after lapse of 12 hours from the arrival of
the rider. Therefore, there is difference of 13 hours to the
date of admission to the hospital. Hence, it falsifies the
involvement of the luggage tempo in the accident.
g) It has also contended that the rider of the bike at
the time of accident had no valid and effective
(SCCH-15) 6 MVC.294 & 787/2011
registration certificate to his vehicle. The vehicle was
purchased by him on 29.09.2010 and the policy was
issued on 27.10.2011 i.e. after lapse of one month of
purchase of the vehicle and a temporary registration was
also issued on the date of purchase which expired on the
last date of September, 2010.
h) However, the rider neither registered the vehicle
nor extended the temporary registration. Registration fee
was paid on 02.12.2011 after the date of accident.
Therefore, petitioner himself has solely contributed for
the occurrence of the accident. Accordingly, prayed to
dismiss the petition against it with costs.
4. On the above said pleadings of the parties, my
learned predecessor in office i.e. the then presiding officer
was pleased to frame the following common issues in
both the petitions.
(SCCH-15) 7 MVC.294 & 787/2011
1. Whether the petitioner proves that he has
sustained injury due to RTA which was
alleged to have been occurred on
02.01.2011 at about 8:30 p.m. at NH-48,
near Bhadrapura cross, Kunigal -
Bengaluru road due to the rash and
negligent riding of the luggage tempo
bearing No.KA-02 A-1919?
2. Whether the petitioner is entitled for
compensation? If so what amount &
from whom?
3. What order?
5. To prove the above said issues and to
substantiate their respective contentions, petitioners in
both the petitions have entered into witness box
respectively as PWs-1 and 2. They got examined the
doctor who has assessed the disability and the in charge
medical record keeper of Kasturbha hospital to cause
production of case sheet of petitioner in MVC.294/2011
respectively as PWs-3 and 4. Totally got exhibited 24
documents at Ex.P-1 to 22, 24 and 25 as well as closed
their side. (Due to oversight after Ex.P-22, the next
number given to the document is 24 and 25, thus there
is no document in serial number 23)
(SCCH-15) 8 MVC.294 & 787/2011
b) Per contra, 1st respondent got examined its officer
as RW-1 and got exhibited the policy as Ex.R-1 and
closed its side.
6. After hearing both sides on merits of the case and
on going through the records, the then presiding Officer
was pleased to allow both the petitions in part saddling
liability on the both the respondents as per his judgment
dated 19.06.2012.
7. Being aggrieved by aforesaid judgment and
award, insurance company i.e. 1st respondent went in
appeal in MFA.9018/2012 c/w MFA.9121/2012
challenging the liability saddled on it. The Hon'ble High
Court of Karnataka was pleased to pass the common
judgment on 02.07.2014 by allowing the appeals and set
aside the impugned judgment as well as remanded for
reconsideration in accordance with law by giving an
opportunity to examine the witnesses cited in I.A.No.4
and with liberty to adduce further evidence.
8. On the receipt of case files, an opportunity is
given to both the parties to adduce their further evidence
(SCCH-15) 9 MVC.294 & 787/2011
if any. In response to which, petitioners have not let in
any further evidence. On the other hand, 1st respondent
cross-examined PW-1 further.
b) In support of its defence, evidence, it has also got
examined ARTO of the office of RTO, Ramanagar as RW-2
and the PSI of Kudur police station i.e. the investigating
officer of criminal case registered with regard to the
present accident as RW-3. Got exhibited 1 document i.e.
Ex.R.2 and closed its side.
c) Thus, totally 4 witnesses got examined and 28
documents got exhibited on behalf of petitioners and 3
witnesses got examined and 2 documents got exhibited
on behalf of 1st respondent. No evidence is let in on
behalf of 2nd respondent.
d) Heard arguments of both sides on merits of the
case and perused the record.
9. Now the findings of this Tribunal on the above
said issues and answered in both the petitions in the;
1. Issue No.1: Affirmative
2. Issue No.2: Petitioners in MVC.
and MVC.294/2011 and
MVC.787/2011 are entitled
(SCCH-15) 10 MVC.294 & 787/2011
for the compensation of
Rs.5,07,200/- and
Rs.10,000/- respectively
together with interest at 8%
p.a. from the date of petition
till the realisation in its
entirety from 1st respondent
3. Issue No.3: As per final order for the
following reasons.
REASONS
10. Issue No.1 in both the petitions:- To prove
their case and to substantiate their respective
contentions as observed above, both the petitioners have
stepped into the witness box as PWs-1 and 2 respectively.
They have filed their affidavit evidence in lieu of their
examination in chief reiterating the petition averments.
They have specifically deposed that accident took place
because of negligent driving of the luggage tempo.
11. In cross-examination their chief evidence is
denied by way of suggestions which are in turn denied by
him. However, it is elicited in the cross-examination of
petitioner in MVC.294/2011 i.e. PW-1 that he has driving
licence to ride the two wheeler; he has purchased the two
wheeler on 29.09.2010; he has taken insurance policy to
(SCCH-15) 11 MVC.294 & 787/2011
the said vehicle on 27.10.2010 from United Insurance
Company and has paid registration fees on 02.12.2010,
but he does not know the number of the two wheeler.
12. However, he has admitted that temporary
registration was expired on the date of accident and he
has made application to his insurance company to grant
compensation in respect of the damages suffered to his
vehicle and the same was rejected since two wheeler had
no fitness certificate and also vehicle was not registered,
but the insurance company has not issued any
endorsement in writing to him. He has admitted the
suggestion that his two wheeler is not registered till date
i.e. as on the date of his cross-examination i.e. on
28.03.2012.
13. He has also deposed that they were returning to
Kudur from Bengaluru; they left Kudur at about 10:00
a.m.; they reached to Bengaluru at 11:30 a.m.; they left
Bengaluru at about 6:30 p.m. and he was riding the bike
and the accident spot is double road.
(SCCH-15) 12 MVC.294 & 787/2011
14. He has denied the suggestion that he was not
proceeding on bike along with Umesh i.e. petitioner in
MVC.784/2011 as pillion rider and tempo has not
dashed him. However, he has informed the accident to
the police at the spot itself and the police have recorded
his statement on the same day and both the vehicles
were taken to police station.
15. He has denied the suggestion that the vehicle
was seized on 05.01.2011 and he has produced
panchanama which was conducted on 15.01.2011. He
has also denied the suggestion that he was admitted to
hospital at 11:30 a.m. and Umesh i.e. pillion rider was
admitted to the hospital after 12 hours of his admission
to the hospital.
16. He has also denied the suggestion that accident
has not taken place as stated by him and he has created
all the documents to get compensation. He has also
denied the suggestion that he has falsely implicated the
luggage tempo and got registered the case on 05.01.2011.
(SCCH-15) 13 MVC.294 & 787/2011
He has also deposed that on the next day of accident, he
came to Kasturba hospital.
17. After remand to the question that, can he
produce the MLC record, he has deposed that he has
already produced. To the question that can he examine
the author of Ex.P-.5, he has deposed that he/the author
of Ex.P-5 is already expired. To the question that can he
produce the medical records about the treatment he has
taken in Kasturba hospital, Tumkur, he has deposed that
he has already produced.
18. In the cross-examination of PW-2 i.e. the pillion
rider/petitioner in MVC.787/2011, it is elicited that he
knows the petitioner in MVC.294/2011 i.e. PW-1 since he
is of Kudur village. He saw the vehicle which caused the
accident from 200 feet and it came from the opposite
direction by overtaking a KSRTC bus.
19. He has also deposed that both himself and PW-2
were taken to the hospital by ambulance; they informed
the date of accident and place of accident to the doctor;
he has given statement to the police in the spot itself and
(SCCH-15) 14 MVC.294 & 787/2011
the police have registered the case. He was in the
hospital for one day and he does not know the result of
the criminal case.
20. To establish its defence with regard to non-
involvement of the luggage tempo in the accident and
thereby rash and negligent act on the part of the luggage
tempo driver, 1st respondent got examined its officer as
RW-1, who has filed his affidavit evidence wherein he has
reiterated the statement of objections averments of 1st
respondent to the main petition.
21. He has specifically deposed that as per police
papers, accident took place on 02.01.2011; complaint
was filed on 05.01.2011 and till then, both vehicles were
lying on the spot of the accident and the same were
seized on 05.01.2011, but neither petitioners nor police
have clarified as to the presence of the vehicles on the
spot without coming to the notice of the police till then.
22. He has also stated that the vehicle was seized
on 05.01.2011 and spot mahazar was drawn on
15.01.2011 and the spares of the damaged vehicles were
(SCCH-15) 15 MVC.294 & 787/2011
allegedly available on the spot on the day of mahazar i.e.
on 15.01.2011, though the vehicles were seized on
05.01.2011 and the inspection of the vehicles was done
on 07.01.2011 and the MV Inspector failed to verify the
documents.
23. He has also specifically deposed that as per
PW-1, accident occurred at 8:.30 a.m.; however, pillion
riders' version is that the accident took place at 9:30
p.m.; but as per the statement made by the injured at the
time of admission to the hospital which is recorded in the
wound certificate, PW-1 came to the hospital on his own
at about 11:30 a.m. On the other hand, pillion rider was
brought to the hospital with somebody at 11:30 p.m.
after lapse of 12 hours, thereby they deny the very
involvement of the luggage tempo in the accident. In his
cross-examination his chief evidence is denied by way of
suggestions which are in turn denied by him.
24. After remand, 1st respondent got examined the
ARTO in the office of RTO, Ramanagar as RW-2. In his
evidence MV report Ex.P-3 is shown and got elicited that
(SCCH-15) 16 MVC.294 & 787/2011
he has received intimation from the jurisdictional police
i.e. Kudur police station on 07.01.2011 to inspect the
vehicle No.KA-02 A-1919 and another unregistered
vehicle bearing temporary registration No.KA-02 NT-0579
which is two wheeler.
25. He has deposed that he has not brought the
said requisition. He has inspected both the vehicles in
the premises of Soluru out post police station. He has not
verified the vehicular documents of both vehicles at the
time of inspection. Basing on the registration number, he
has stated that two wheeler is an unregistered vehicle
but has temporary registration. The validity of temporary
registration is only for 30 days from the date of issue.
26. Since it is the contention of the 1st respondent
that Ex.P-3 is a created document, the counsel is
permitted to cross-examine witness wherein he has
denied that Ex.P-3 is created document. However, during
the cross-examination of petitioner, he has produced true
copy of requisition of the concerned investigating officer
and it is exhibited as Ex.R-2.
(SCCH-15) 17 MVC.294 & 787/2011
27. In the cross-examination for petitioner, RW-2
has admitted the suggestion that at the time of accident,
damages were fresh and after physical examination he
has issued MV report and at the time of examination,
both the vehicles were in the premises of Soluru out post
police station.
28. In support of his defence, 1st respondent has
also got examined PSI, Kudur police station i.e.,
investigating officer of the criminal case registered in the
present accident as RW-3 who has deposed that on
05.01.2011 at about 2:00 p.m., he has received the
complaint by one Shivananda and on the basis of the
said complaint, he has registered the criminal case for
the offences punishable under Sections 279, 337 and
338 of IPC.
29. It is also in his cross-examination for petitioner
that he has also visited the spot on the very day and
conducted spot mahazar in the presence of CWs-3 and 4
by name Umesha and Kumara and CW-2 Narasimha
Murthy who is the eyewitness shown the spot.
(SCCH-15) 18 MVC.294 & 787/2011
30. He has also deposed that he has conducted
seizure mahazar and seized both the vehicles in front of
house of Govindaiah of Bhadrapura cross and seized the
vehicles on the very day and recorded statement of CWs-
2 to 4.
31. It is also in his cross-examination that he has
received xerox copies of the vehicular documents such as
driving licence, insurance policy copy and RC from the
accused driver and written letter to concerned RTO for
MV examination of both the vehicles.
32. It is also in his evidence that in the course of
investigation, he has also collected the driving licence
and other vehicle documents from the rider of two
wheeler Shivananda i.e. the petitioner herein. As per the
xerox copies CW-1/Shivananda/petitioner has produced
the policy was valid and he had valid driving licence to
ride the two wheeler.
33. Since it is the contention of 1st respondent that
spot mahazar date in the documents is 15th and witness
denied the same, counsel is permitted to cross-examine
(SCCH-15) 19 MVC.294 & 787/2011
RW-3 who deposed that spot mahazar was done on
05.01.2011 but due to oversight it is written in the
document as 15.01.2011.
34. If the documents produced on behalf of parties
are gone through Ex.P-1 is the FIR with complaint which
reveals that jurisdictional police have registered criminal
case against the luggage tempo driver for the offences
punishable under Sections 279, 337 and 338 of IPC. The
complaint is dated 05.01.2011 and it was received at 2
p.m.
35. If the contents of Ex.P-2 are taken note off, it is
stated that a witness by name Narayan Murthy who is
cited as CW-3 in the charge sheet stated that they have
parked the vehicles involved in the accident nearby
house of Govindaiah and spare parts of the damaged
vehicles were found in the spot itself.
36. Ex.P-3, the MV report reveals that as per the
requisition dated 07.01.2011, the vehicles were subjected
for MV examination in Kudur police station premises on
the very day. Ex.P-4 is the seizure mahazar and it is
(SCCH-15) 20 MVC.294 & 787/2011
dated 05.01.2011 wherein it is stated that both the
vehicles which were parked nearby house of one
Narasimha Murthy were seized in between 5:45 to 6:30
p.m.
37. So, if the place and the timings of Ex.P-1 to 4
are taken note off, prima facie it appears that spot
mahazar was done on the very day i.e. 05.01.2011 and
due to oversight it is written as 02.01.2011 and the
complaint is lodged on 05.01.2011 at 2 p.m. As per Ex.P-
2 spot mahazar was conducted in between 4:30 to 5:30
p.m. Therefore, there is nothing on record to disbelieve
the explanation given by PW-3 that the date is mentioned
wrongly as 15.01.2011 in the place of 05.01.2011.
38. So far the fact that luggage tempo driver charge
sheeted for the present accident, absolutely there is no
dispute. Therefore, if the entire evidence on record is
taken into consideration, preponderance of probabilities
much tilts in favour of the petitioner than the defence
raised on behalf of 1st respondent about the involvement
(SCCH-15) 21 MVC.294 & 787/2011
of the luggage tempo and the rash and negligent driving
of its driver resulting in the present accident.
39. So far petitioners suffering injuries in the
accident, absolutely there is no dispute. Of course, 1st
respondent has disputed the nature of injuries, nature of
treatment, quantum of disability and quantum of medical
expenditure, but it has not disputed the fact of
petitioners suffering injuries in the accident.
40. Moreover, to establish the accidental injuries,
petitioners apart from their oral evidence have also
produced the wound certificate, discharge summary,
medical bills, prescriptions, medical report, CD and x-
rays respectively at Ex.P-5, 7 to 10, 18, 18(a) and 19 in
their chief evidence.
41. They have also got adduced the oral evidence of
PW-3/the doctor who has treated and assessed the
disability and through him they got produced OPD card
and x-rays at Ex.P-21 and 22. They have also got
adduced oral evidence of PW-4 and through him got
produced the case sheet through him at Ex.P-25.
(SCCH-15) 22 MVC.294 & 787/2011
42. All the above medical documents are in support
of each other and in consonance with the case of
pettioners about their suffering injuries in the accident.
So, petitioners have successfully proved that accident
took place on the rash and negligent driving of the
luggage tempo driver and they have suffered injuries in
the accident. Therefore, issue No.1 in both the petitions
is answered in affirmative.
43. Issue No.2 in both the petitions:- In view of
answering issue No.1 in affirmative, both the petitioners
are entitled for compensation. Now in respect of
quantum.
In MVC.294/2011, it is the case of petitioner that
he was aged 32 years; working as goldsmith and owner of
Gajamukha Jewellery Works, Kudur Hobli, Magadi
Taluk, Ramanagar and had income of Rs.2,80,000/- p.a.
To establish his case, petitioner apart from the oral
evidence has produced notarized copy of driving licence
and SSLC marks card at Ex.P-13 and 14 respectively
which reveal his date of birth as 26.01.1977. Accident
(SCCH-15) 23 MVC.294 & 787/2011
took place on 02.01.2011. Therefore, as on the date of
accident, as per Ex.P13 and 14, petitioner was aged 34
years.
44. In the charge sheet and in the medical records,
his age is shown as 30 and 34 years respectively.
However, there is no cross-examination on behalf of other
side no cross examination is done about the age of
petitioner. Therefore, considering the contradictory
evidence, it is just and proper to take his age as 34 years
in view of Ex.P-13 and 14 wherein specific date of birth is
mentioned. So, the proper multiplier applicable is 17.
45. So far as his avocation, petitioner apart from the
oral evidence has produced Ex.P-11 general licence for
doing jewellery works. It is issued in the name of
petitioner on 25.06.2010. Ex.P-12 is the certificate issued
by Prime Ministers Employment Generation Programme
for the purpose of petitioner Entrepreneurship
development programme. In the charge sheet it is shown
that petitioner is a person of goldsmith community.
(SCCH-15) 24 MVC.294 & 787/2011
46. Ex.P-15 to 17 are the income tax returns for the
year 2006-2007, 2007-2008 and 2008-2009 wherein it is
stated that petitioner is proprietor of Gajamukha
Jewellery Works and his declared income is
Rs.1,13,165/-, Rs.1,52,285/- and Rs.1,24,870/-
respectively. Accident took place during 2011.
47. He has also produced the tax returns at Ex.P-26
to 28 for the years 2009-10, 2010-11 and 2011-12
wherein his declared income is Rs.1,65,188/-,
Rs.2,20,246/- and Rs.1,39,850/-. Since the accident
took place during 2011, tax returns for the assessment
year 2010-2011 is important document wherein it is
shown that his declared income is Rs.2,20,246/-. So, it
comes to Rs.18,354/- p.m. Accordingly, his average
income is taken at Rs.18,000/-.
48. It is the case of the petitioner that in the
accident, he has suffered injuries as stated in the wound
certificate. He took treatment by duty doctor, Kudur
Government hospital, Kudur and Kasturba hospital,
Tumkur; was inpatient in the hospital for two days and
(SCCH-15) 25 MVC.294 & 787/2011
incurred expenditure of Rs.45,000/-. Petitioner has
reiterated the above petition averments in his affidavit
evidence and in his cross-examination, his chief evidence
is denied by way of suggestions which are in turn denied
by him.
49. PW-3/the doctor who has assessed the
disability has filed his affidavit evidence wherein he has
stated that he is working as Orthopedic Surgeon in
Victoria hospital. On going through the medical records
and say of petitioner, it is found that petitioner has
suffered RTA on 02.01.2011.
50. It is also in his affidavit that he was diagnosed
for communited fracture of left radius with ulnar styloid
fracture; was treated in the form of closed reduction and
IL with K wire on 03.01.2011 and K-wife removed
subsequently.
51. He has also deposed that recently he has
examined for physical disability assessment on
18.11.2011. On clinical examination and radiological
examination as well as on the complaints of petitioner it
(SCCH-15) 26 MVC.294 & 787/2011
is found that fracture is mal united and petitioner is
having permanent physical impairment to the left upper
limb at 34% which comes to the whole body at 12%. He
has produced OPD card and x-ray respectively at Ex.P-21
and 22. In the cross-examination he has specifically
deposed that fracture is mal united.
52. If the documents produced by the petitioner are
taken note off, Ex.P-5 is the wound certificate issued by
Government hospital, Kudur which reveals that
petitioner was brought to their hospital with the history
of RTA on 02.01.2011 at 8:30 a.m.; he was diagnosed for
swelling over left wrist, tenderness over left hand and x-
ray reveals fracture of radius ulnar styloid which is
grievous in nature.
53. Ex.P-7 is discharge card of Kasturba hospital
which reveals that petitioner was admitted on 03.01.2011
and was discharged on 04.1.2011; was diagnosed for
injury of left wrist, pain, swelling in left wrist. X-ray
reveals communited fracture of left radius with ulnar
styloid fracture and was treated surgically.
(SCCH-15) 27 MVC.294 & 787/2011
54. Ex.P-10 is lab report. Ex.P-18 is colour
photographs and Ex.P-18(a) is CD. Ex.P-19 is x-ray films.
They are all in corroboration with the oral evidence of
petitioner and PW-3/doctor. Ex.P-21 and 22 are OP card
and x-ray films are in corroboration with the oral
evidence of PW-3 with regard to recent examination.
55. So, if the entire evidence is taken into
consideration, it can be safely held that petitioner has
suffered fracture of radius ulnar styloid which is grievous
in nature; was treated surgically and was in the hospital
for a period of 2 days and discharged in stable condition.
56. To prove the medical expenditure, petitioner has
not produced any bills. However, in view the nature of
injuries, it thought just and proper to award some
reasonable compensation for medical expense.
57. It is in the evidence of PW-3 that petitioner is
having permanent physical impairment to the left upper
limb at 34% which comes to the whole body at 12%. So,
he has taken 50% of disability. But, it is general practice
(SCCH-15) 28 MVC.294 & 787/2011
that 1/3rd of disability of a particular limb should be
taken as whole body disability.
58. Therefore, considering the age of petitioner and
his work as goldsmith and the injuries are to the upper
limb, this Tribunal can take judicial notice that it will
affect the functional ability of the petitioner. Hence, it is
just and proper to take whole body disability at 10% for
calculation of loss of future earning, loss of amenities
and comfort as well as permanent physical impairment.
59. In the result, petitioner is entitled for
compensation under the heads mentioned below and the
amount shown against them.
Pain and Sufferings Rs. 30,000/-
Loss of Income during laid up Rs. 10,000/-
period, diet, nourishment and etc.
Attendant Charges, Conveyance, Rs. 10,000/-
and Incidental Charges
Medical Expenses Rs. 10,000/-
Loss of future earning Rs.3,67,200/-
(18,000 x 12 x 10/100 x 17)
Loss of Amenities and Comfort Rs. 30,000/-
Permanent physical impairment Rs. 50,000/-
Total: Rs.5,07,200/-
60. In MVC.787/2011, it is the case of petitioner
that he is aged about 22 years, was a bus conductor in a
(SCCH-15) 29 MVC.294 & 787/2011
private bus, had income of Rs.5,000/- p.m. To establish
that petitioner apart from his oral evidence has not
produced any supportive evidence. However, in the police
papers and in the wound certificate, his age is shown as
22 years. There is no cross-examination by other side
about the age of petitioner. Hence, his age is accepted as
pleaded at 22 years and the appropriate multiplier
applicable to the said age is 18.
61. To prove his avocation and income, petitioner
has not produced any supportive documents. However in
the charge sheet it is shown that he is a bus conductor.
So far the quantum of income, there is no evidence on
record. Therefore, considering the cost of living on the
date of accident and the age of petitioner, it is thought
just and proper to accept the income of the petitioner as
pleaded in the petition i.e. Rs.5,000/- p.m.
62. It is the case of petitioner that in the accident he
has suffered injuries as shown in the wound certificate;
took treatment by duty doctors of Kudur Government
hospital as an inpatient for one day; has spent
(SCCH-15) 30 MVC.294 & 787/2011
Rs.5,000/- towards treatment and became permanently
disabled due to accidental injuries. Petitioner has
reiterated in his affidavit evidence. In his cross-
examination, his chief evidence is denied by way of
suggestions which are in turn denied by him.
63. Even he has contended that he became
permanently disabled because of accidental injuries, he
has not produced any supportive doctor's evidence.
However, if the wound certificate at Ex.P-20 is taken note
off, it is noted there that petitioner was admitted to their
hospital with the history of RTA on 02.01.2011 at 9:30
p.m.
64. It is also there that on examination it is found
that petitioner has tenderness over medial of left knee
joint, tenderness over medial aspect of left ankle joint,
contusion over left parietal region of the skull, abrasion
over right knee, abrasion over dorsal aspect of right and
left fore arm which are simple in nature.
65. Petitioner has not produced any other document
in support of his case. Therefore, considering his
(SCCH-15) 31 MVC.294 & 787/2011
evidence on record and injuries he has suffered which is
simple in nature, it is thought just and proper to award
global compensation of Rs.10,000/-.
66. Considering the cost of living on the date of
accident, it is thought fit to award interest at 8% p.a.
from the date of petition till the realization of the
compensation amount in its entirety.
67. Now, in respect of liability. There is no dispute
between the parties with regard to the fact that 2nd
respondent is the RC owner and 1st respondent is the
insurer of the luggage tempo. However, 2nd respondent
has contended that the liability if any is subject to the
terms and conditions of the policy such as driving licence
and vehicular documents.
68. However, during course of evidence, it has not at
all pressed its defence on breach of policy conditions.
Moreover, there is no allegation in the charge sheet with
regard to any of the offences punishable under any of the
provisions of MV Act.
(SCCH-15) 32 MVC.294 & 787/2011
69. So, it appears that as on the date of accident, the
luggage tempo driver did possess valid and effective
driving licence and the luggage tempo also had valid and
effective documents which were in order and in force as
on the date of accident. Hence, 2nd respondent being the
RC owner is liable to pay the compensation and 1st
respondent being the insurer is liable to indemnify the
said liability.
70. Accordingly, petitioner in MVC.294/2011 and
MVC.787/2011 are respectively entitled for the
compensation of Rs.5,07,200/- and Rs.10,000/-
respectively together with interest at 8% p.a. from the
date of petition till realization of the amount in its
entirety from 1st respondent. Accordingly, issue No.2 is
answered in both the petitions.
71. Issue No.3 in both the petitions:- From the
above discussions, this Tribunal proceeds to pass the
following order.
(SCCH-15) 33 MVC.294 & 787/2011
ORDER
Both the petitions filed by petitioners in MVC.294/2011 and MVC.787/2011 under Section 166 of IMV Act are hereby allowed in part with costs.
In the result, petitioners in MVC.294/2011 and MVC.787/2011 are entitled for compensation amount of Rs.5,07,200/- and Rs.10,000/- together with interest at 8% p.a. from the date of petition till the realization in its entirety from 1st respondent.
1st respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
In MVC.294/2011, petitioner shall deposit Rs.2,25,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in his favour through an account payee cheque without awaiting further orders.
On deposit of compensation amount, since the compensation amount in MVC.787/2011 is meager, it is ordered to be released the entire compensation amount with interest and cost to the petitioners individually through account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/- and 500/- respectively in MVC.294/2011 and MVC.787/2011.
Draw a decree accordingly.
(SCCH-15) 34 MVC.294 & 787/2011 Office is directed to keep the original copy of the judgment in MVC.294/2011 and the copy thereof in MVC.787/2011.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open Court by me on this the 23rd day of November, 2015.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: K.N.Shivananda PW2: Umesh PW3: Dr.Ramesh PW4: Chiranjivi Sudhakar.C. LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: Hans Shivhare RW2: G.S.Gurumurthy RW3: V.S.Shabarish LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 First Information Report with complaint
Ex.P2 Panchanama
Ex.P3 IMV Report
Ex.P4 Seizure Panchanama
Ex.P5 Wound certificate
Ex.P6 Charge sheet
Ex.P7 Discharge card
(SCCH-15) 35 MVC.294 & 787/2011
Ex.P8 Medical bills (4 in nos)
Ex.P9 Prescription (1 in no.)
Ex.P10 Medical report (1 in no.)
Ex.P11 Notarised copy of the general license (Original is
produced for perusal)
Ex.P12 Notarised copy of the certificate issued bythe
Principal, Training Center. (Original is produced for perusal) Ex.P13 Notarised copy of the driving license (Original is produced for perusal) Ex.P14 Notarised copy of the SSLC marks card (Original is produced for perusal) Ex.P15 Income tax returns in the year 2006-2007 Ex.P16 Income tax returns in the year 2007-2008 Ex.P17 Income tax returns in the year 2008-2009 Ex.P18 Photographs (2 in nos) Ex.P18(a) CD Ex.P19 X-rays (3 in nos) Ex.P20 Wound certificate OPD card Ex.P21 Ex.P22 One X-ray Ex.P23 Ex.P24 : Authorization Letter Ex.P25 : Case Sheet Exs.P26 Income Tax returns for the year 2009 to to P28: 2011.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
Ex.R.1: Policy Ex.R.2: True copy of requisition of concerned I.O.
(K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.