Bangalore District Court
Channappa vs Muniswamy.G on 16 February, 2024
KABC020091912019
IN THE COURT OF III ADDL.JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL
CAUSES BENGALURU
(SCCH-18)
Dated: This the 16th day of February 2024
Present: V.NAGAMANI
B.A.L., LL.B., LL.M.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BENGALURU.
M.V.C. No.1929/2019
Petitioner Shri Channappa,
Son of Linge Gowda,
Aged about 54 years,
Residing at Kyathumgere,
Kirangandur, Kothathi
Hobli, Mandya Taluk &
District.
(By Pleader Shri Krishna
Murthy S.G. )
V/s
Respondents 1.Shri. Muniswamy G.,
S/o Gangaboraiah, No.82/2, Ground Floor, 2 SCCH-18 MVC 1929/2019 2nd main, 4th cross, Kaveri Pura, Bengaluru - 560 079.
(Exparte)
2. The Manager, United India Ins. Limited, Divisional Office at IX, Mithra Towers, 10/4, Kasturba Road, Bengaluru -560001.
(Policy No.0723823118P113106571 period from 11.01.2019 to 10.01.2020 (By Pleader Shri S.R.Srinath)
3. The Manager, Iffco Tokio General Ins. Co.
Ltd., Office at No.15/86, Opp.
BEO Office, 1st floor, K.R. Road, Vidyanagara, Mandya City & District-571400.
(By Pleader Shri Sharanappa Gouda Malipatil ) *J U D G M E N T* This judgment is emerged consequent upon the petition filed by the petitioner U/S 166 of M.V. Act, 3 SCCH-18 MVC 1929/2019 claiming compensation of Rs.15,00,000/- on account of injuries sustained by him, in a road traffic accident.
*FACTS OF THE CASE IN NUTSHELL*
2. Facts leading to the case of the petitioner forthcoming in the petition that, on 23.2.2019 at about 7.00 p.m, the petitioner was proceeding in his motorcycle bearing No.KA-11-U-3609 along with his friend from Ramohalli to Mysore road, when he reached near MRP wines, Vinayakanagara, Ramohalli road, Kengeri Hobli, Bengaluru, at that time, the rider of the Motorcycle bearing registration No.KA-02-JF-6992 was riding the same, in a rash and negligent manner and dashed against the petitioner from backside. Due to the said impact, the petitioner fell down with his motorcycle and sustained grievous injuries.
4 SCCH-18 MVC 1929/2019
3. It is further stated that, immediately the petitioner was shifted to nearby Bhagwan Mahaveer Jain Hospital, wherein, he was treated as an inpatient. The petitioner had spent more than Rs.5,00,000/- towards medicines, attendant charges, food and nourishment.
4. It is also stated in the petition that, prior to the accident the petitioner was hale and healthy, aged about 52 years, doing Dambar Machine Operator and earning a sum of Rs.16,000/- per month. And he used to spend the said amount, for the maintenance of his family members. After the accident, he could not do any work due to his severe injuries.
5. It is alleged in the petition that, the accident was occurred due to the rash and negligent act of the rider of the Motorcycle bearing registration No.KA-02-JF-6992. In this regard, case was 5 SCCH-18 MVC 1929/2019 registered against the driver by the jurisdictional Wilson Garden Traffic Police as per Crime No.28/2019 under section 279 and 337 of IPC. As such, the respondent No.1, being the owner and the respondent No.2 being the insurance company of the offending vehicle are jointly and severally liable to pay compensation to the petitioner. Hence, the petitioner has filed the instant petition, seeking compensation.
6. After registration of the case, as usual notices were issued to the respondents. In response to the notices, the respondent No.1 has not appeared before the court, remained absent, placed exparte. On the other hand, the respondent No.2 and proposed respondent No.3 have appeared through their counsels and filed the written statements in answer to the case of the petitioner. 6 SCCH-18 MVC 1929/2019
7. In the written statement of the respondent No.2, has not seriously disputed the accident and the injuries sustained by the petitioner. But, seriously disputed the allegation of actionable negligence on the part of the rider of the motorcycle. At the same time, admitted about the issuance of package policy in respect of motorcycle bearing No.KA-02-JF-6992, and the same was valid, as on the date of accident. It is the contention of the respondent that, the rider had no valid and effective driving license to drive the said vehicle and so also the petitioner was not possession DL and he was not wearing helmet. Further contended that, there was a contributory negligence. Hence if the comes to conclusion to fasten liability, it is very much essential to fasten liability on the petitioner's insurer also. Ultimately stated that, the compensation claimed by the petitioner, is highly excessive, 7 SCCH-18 MVC 1929/2019 exorbitant and without any basis. With all these main grounds, prayed to dismiss the petition with cost. The respondent No.2 has also filed additional written statement, by reiterating the same defenses, forthcoming
8. On the other hand, it is pertinent to note that, the respondent No.2 by filing necessary impleading application, sought for to implead the proposed respondent No.3 on record, stating that, the presence of the said respondent is, necessary for final determination of the case. The said application came to be allowed, to give an opportunity to the respondent, to prove his defense of contributory negligence. Since, as per law, claim petition has to be decided independently, by giving an opportunity to both the parties, without fully relying on the police papers. After considering the said application, by causing due amendment 8 SCCH-18 MVC 1929/2019 process, in this regard, filed amended petition, by impleading the proposed respondent No.3, who also filed written statement, in answer to the case of the petitioner and the defenses of the respondent No.2.
9. In the written statement of the respondent No.3, has not seriously disputed the accident and the injuries sustained by the petitioner. But, seriously disputed the allegation of actionable negligence on the part of the rider of the motorcycle bearing No.KA-11-U-3609. At the same time, denied about the issuance of policy in respect of motorcycle bearing No. KA-11-U-3609, as on the date of accident. It is the contention of the respondent that, there was no fitness certificate to the motorcycle and the owner by allowing such a vehicle to ply on road violated the terms and conditions of the policy. Further it is contended that, the accident had occurred, only due to the sole negligence on the part 9 SCCH-18 MVC 1929/2019 of the rider of the motorcycle bearing No.KA-02-JF- 6992. Further, contended that, the rider had no valid and effective driving license to drive the said vehicle and he was not wearing helmet at the time of the accident and so also the respondent No.1's rider was not possessing DL. With all these main grounds, prayed to dismiss the petition with cost.
10. On the basis of rival pleadings of both the parties, for final determination of the case, following issues are framed;
*ISSUES*
1) Whether the petitioner proves that, he sustained grievous injuries in a motor vehicle accident, that was taken place on 23.2.2019 at about 7.00 p.m. near MRP wines, Vinayakanagara, Ramohalli road, Kengeri Hobli, Bengaluru due to the negligence of the rider of the motorcycle bearing Reg.No.KA-02-JF-6992 in an actionable negligence?
10 SCCH-18 MVC 1929/2019
2) Whether the petitioner is entitled for compensation as prayed for? If so, at what rate ? from whom?
3) What order or award?
11. In order to substantiate the case of the petitioner by name Channappa, during the course of evidence, placed his affidavit evidence, in lieu of examination-in-chief, who examined as PW1, in the case on hand. At the time of his evidence, 12 documentary evidence got marked as Ex.P1 to Ex.P12. In addition to this, placed the evidence of Dr. S. Ramachandra as PW2. At the time of his evidence, 2 documentary evidence, got marked as Ex.P13 & Ex.P14, But, the said witness, except the examination-in-chief evidence, not tendered for cross examination. Further, examined Dr.Nagaraj B.N. as PW3. At the time of his evidence, 2 documentary evidence, got marked as Ex.P15 & Ex.P16 11 SCCH-18 MVC 1929/2019
12. On the other hand, the respondent No.2 in order to disprove the contention of the petitioner, and to prove all the defenses forthcoming in the written statement has examined one eyewitness/first informant by name Jayaram as RW.1. The respondent No.3 has examined its official/Manager by name S. Narendran as RW.2, but no documentary evidence adduced by these witnesses. At the same time, it is pertinent to note that, the respondent No.1, being owner of the offending vehicle, remained silent, without challenging the case of the petitioner, by placing his defense evidence.
13. The learned counsel for the respondent No.2, at the time of the argument, had relied on the following citations:
1. MFA No.962/2012 c/w MFA No.989/2012 dated 4.6.2014 between H.S. Panchaksharaiah Vs. The New India Assurance Co. Ltd. & another 2. ILR 2021 KAR 68 12 SCCH-18 MVC 1929/2019 between The United India Insurance Co. Ltd., Vs. Smt. Mary & others.
14. With due respect, I have gone through the propositions laid down in the aforesaid cases, wherein, it was observed that, "the law is fairly well settled that, the final report and admission of guilt by accused before criminal court are not decisive in a proceeding before the Tribunal. The Tribunal has to decide the claim petition, on the basis of the evidence, adduced before it, however parties, may rely upon police records, as corroborative piece of evidence. Further, observed that, the burden of proving negligence lies on the person, who alleges it. However, facts of the accident may by themselves constitute evidence of negligence. However, the finding with regard to contributory negligence has to be recorded, on the basis of proper consideration of pleadings and legal evidence adduced by both the parties, and the same cannot be based merely on police records" Heard the arguments of both the counsel, and perused the written arguments filed by the respondent No.2 and materials available on record. 13 SCCH-18 MVC 1929/2019
15. On appreciation of the evidence available on record, my findings to the aforesaid issues are as follows:
Issue No.1: In the Affirmative.
Issue No.2: Partly in the Affirmative.
Issue No.3: As per final order,
for the following:
*R E A S O N S*
ISSUE NO.1:-
16. It is the specific case of the petitioner that, due to the actionable negligence on the part of the rider of the offending vehicle Motorcycle, bearing registration No.KA-02-JF-6992, alleged accident had taken place. Consequently, the petitioner had sustained grievous injuries.
17. On the other hand, the respondent No.1 being the owner of the offending vehicle placed exparte without challenging the case of the petitioner. The respondent No.2-insurance 14 SCCH-18 MVC 1929/2019 company , though not disputed the accident and the injuries sustained by the petitioner, seriously disputed the allegation of actionable negligence on the part of the rider of the offending motorcycle, contending that, there is a contributory negligence, and also due to the sole negligence on the part of the rider of the defending vehicle, alleged accident, and its consequences were taken place. Apart from this, it is pertinent to note that the proposed respondent No.3, being the insurer of the defending vehicle strongly denied the allegation of actionable negligence on the part of the rider of the defending vehicle, as on the date of the accident, stating that, due to the sole negligence on the part of the rider of the offending vehicle, alleged accident had taken place.
18. On the basis of rival contentions of both the parties to the lis, in connection with the accident 15 SCCH-18 MVC 1929/2019 and the cause of accident, let me to discuss the available evidence on record from the side of both the parties, to the case on hand, in order to come to the proper conclusion with respect to the above fact in issue, since, Trial is the voyage of justice, wherein truth is the quest.
19. On going through the above issue, burden is on the petitioner, to prove the same, on the touch stone of preponderance of probabilities. The petitioner- Channappa, to discharge the burden lies on him, relied on his affidavit evidence, wherein, he reiterated the main petition averments about the accident and injuries sustained by him, consequent upon the negligence on the part of the rider of the offending vehicle. The affidavit evidence of the petitioner remained unquestioned.
20. On the other hand, to prove all the defenses forthcoming in the written statement of the 16 SCCH-18 MVC 1929/2019 respondent No.2 company has examined first informant and the pillion rider of the defending vehicle, by name Jayaram as RW.1. The respondent No.3 examined its Manager by name S. Narendran as RW.2. The said witness strongly contended that, the alleged accident was taken place due to the negligence on the part of the rider of motorcycle bearing Reg. No.KA-02-JF-6992. The RW.1 being the complainant has not given supportive evidence in connection with the defenses of the respondent No.2 company, who denied the suggestion of head on collision between offending and defending vehicles. In the evidence of the RW1, no supportive facts forthcoming to believe the defense of the contributory negligence. But both the witnesses have not produced any documentary evidence for consideration.
17 SCCH-18 MVC 1929/2019
21. Among the documentary evidence placed on record by the petitioner, Ex.P1 to Ex.P6 and Ex.P12 are the material documents in support of the above issue. Remaining documents and the evidence of PW2 and PW3 are to be discussed in detail, at the time of appreciation of evidence while coming to the conclusion in connection with the issue No.2.
22. On taking birds eye view towards the documentary evidence, Ex.P1- first information report, discloses that, alleged accident had taken place on 23.2.2019. In this regard, First information was given by one Jayaram/pillion rider on 24.2.2019. In connection with the point of one day delay, in giving first information is concerned, it is to be noted in the column No.3(c) of Ex.P1 to the effect that, since he was providing the treatment to the petitioner, in the hospital, belated complaint was given. In the recitals of the complaint, Ex.P.2 also, 18 SCCH-18 MVC 1929/2019 he reiterated the same. To disprove the said reason, and also, to suspect about the case of the petitioner, no contra materials available on record, from the side of the respondents. Added to this, it is pertinent to note that, when the petitioner had sustained grievous injuries consequent upon the accident, one cannot expect immediate complaint from the complainant. As such, in the absence of the rebuttal evidence to disprove the reason noted on the point of delay, the said point of delay is not fatal to the case of the petitioner and solely on the said point, entire claim petition, filed under beneficial legislation, cannot be thrown out.
23. Another material point forthcoming in the police papers that, on the basis of first information given by the petitioner, criminal law set in motion against the rider of the offending vehicle bearing registration No.KA-02-JF-6992, alleging that, he had 19 SCCH-18 MVC 1929/2019 committed the offenses punishable under section 279 and 337 of IPC. In the recitals of the complaint, and also in column No.10 of the Ex.P1, there is a clear narration about the actionable negligence said to have committed by the rider of the offending vehicle, as on the date of the accident. Either the driver or its owner has not made an effort well in time before the competent court of law, to prove the innocence of the driver of the offending vehicle. Accordingly, these two material documents which laid down the foundation remained unquestioned.
24. Added to this, on going through the Ex.P3- spot mahazar said to have executed in the presence of panch witnesses, reveals about involvement of the offending vehicle in the accident. As per the report of the motor vehicle inspector, alleged accident was not due to any mechanical defects of the vehicles 20 SCCH-18 MVC 1929/2019 involved in the accident. Ex.P.5 -133 notice was issued against the RC owner of the offending vehicle. The said document also reflects about the involvement of the offending vehicle in the accident. For having received reply to the said notice, no documentary evidence is available on record, for appreciation.
25. Another material document, Ex.P.12 copy of the wound certificate depict that, on the history of RTA, the petitioner had sustained grievous injuries. All these material documents remained unquestioned by the other side. The material documents, Ex.P.1 to Ex.P.5 and 12 give clear picture about the genuineness of the case of the petitioner, about the accident, due to the actionable negligence on the part of the driver of the offending vehicle. To prove the defense of the contributory negligence, the respondent No.2 herein, has not 21 SCCH-18 MVC 1929/2019 placed convincing and cogent documents, in answer to the police papers placed by the petitioner herein.
26. Ultimately, on going through the charge sheet submitted by the investigation officer, as per Ex.P6 reveals that, after due investigation process final report has been filed against the rider of the offending vehicle by name Gangadhar V.P., on the allegation that, he had committed the offences punishable under section 279 and 338 of IPC. The narration made in the column No.17 of the charge sheet remained unshaken. No doubt, the final report is not substantive piece of evidence to consider the claim petition, but in the absence of contra materials and convincing rebuttal evidence, there is no hurdle to believe the said documents as conclusive proof in support of the above fact in issue.
27. Another point to be discussed herein that, at the time of cross-examination of PW1, though 22 SCCH-18 MVC 1929/2019 several questions put to the witness, by the learned counsel for the respondent company, on the point of delay, and about the manner of the accident, nothing has been elicited to disbelieve the entire case of the petitioner, and to disbelieve the recitals of the police documents, and also to believe the defenses of the respondents, to prove the innocence of the driver of the offending vehicle, in connection with the allegation of actionable negligence. In para No.3 and 4 at page No.7 of the cross examination of the PW1, it is evident that, the learned counsel for the respondent No.2 suggested to the PW.1 that, due to his negligence, alleged accident had taken place. But he clearly stated in the para No.4 that, the offending vehicle came from the backside and dashed to his vehicle. On appreciation of the cross-examination of PW.1 in toto, depict that, no positive evidence to show that, due to the sole negligence of the petitioner 23 SCCH-18 MVC 1929/2019 alleged accident had taken place. Added to this, PW.1, had denied the suggestion made by the respondent No.2 to the effect that, the PW.1 and the pillion rider were not wearing helmet at the time of accident. Hence, I am of the view that, the petitioner herein, has placed satisfactory and convincing evidence, in support of the above fact in issue.
28. On the other hand, the RW.1 at the time of cross-examination, not given supportive answers with respect to the defence of the respondent No.2 that, due to the negligence on the part of rider of the defending vehicle accident in question had taken place, and also there is a contributory negligence. Even at the time of cross-examination of RW.2 clearly stated that, the rider of the vehicle will not come under the purview of third party. Except this, no other points elicited from his mouth. 24 SCCH-18 MVC 1929/2019
29. Overall appreciation of the evidence placed on record, I am of the view that, in support of the above issue, the petitioner has placed cogent and convincing evidence for consideration. In the light of the evidence placed on record by the petitioner, in the case on hand, by way of affidavit and the documentary evidence, speak that, the alleged accident was occurred, due to the negligence on the part of the rider of the offending vehicle Motorcycle bearing registration No.KA-02-JF-6992. Hence, without making much discussion on the point of the rash and negligent riding of the driver of the offending vehicle, I am answering the Issue No.1, is in the Affirmative.
ISSUE NO.2 :
30. This issue is with respect to the entitlement of reliefs claimed by the petitioner. The petitioner through this petition, claiming compensation of 25 SCCH-18 MVC 1929/2019 Rs.15,00,000/- on account of the injuries sustained by him in the accident, under different heads.
31. Before appreciation of the evidence placed by the petitioner about the injuries sustained by him, in the accident and its consequences, it is apt to note herein, the preposition laid down in the following land mark judgment, while appreciating the injury cases in Motor Vehicle Act.
Civil Appeal No.8981/2010 D.D. 18.10.2010 Rajkumar V/s Ajay Kumar & Another.
"In the aforesaid case, it was held that, the court has to make judicious attempt to award compensation to the loss suffered by the claimant. The compensation should not be assessed conservatively. On the other hand, compensation should also not be endeavouring to secure some uniformity and consistency. The object of awarding compensation is to make good the loss suffered as a result of wrong done, as far as money can do so, in a fair reasonable and equitable manner." "while determining quantum of compensation, in such cases, the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally 26 SCCH-18 MVC 1929/2019 untenable claim of the opposite party saying that nothing is payable. That sympathy for the victim does not, and should not, comes in the way of making a correct assessment. But if a case is made out, and the court must not be chary of awarding adequate compensation. "
32. In connection with the injuries sustained by the petitioner, in the accident, has produced wound certificate, marked as Ex.P12. The said document discloses that, he had sustained the following injury:-
Fracture of both bone of right leg
33. In connection with the above said injuries, the doctor is of the opinion that the said injury is grievous in nature. Further, the petitioner has produced discharge summaries, medical bills as per Ex.P7 & Ex.P8. In addition to his evidence placed the evidence of Dr.Nagaraj B.N. PW3. At the time of his evidence placed clinical notes and X-ray as per Ex.P15 and Ex.P16. On going through the 27 SCCH-18 MVC 1929/2019 discharge summaries of Bhagwan Mahaveer Jain Hospital, Bengaluru marked at Ex.P8 goes to show that, the petitioner was admitted for 5 times i.e., from 24.2.2019 to 28.2.2019, 23.4.2019 to 25.4.2019, 02.05.2019 to 06.05.2019, 24.06.2020 to 27.6.2020 and 03.08.2019 to 06.08.2019 . By taking into consideration of the nature of the injuries and the treatment taken by the petitioner, he could have undergone pain and sufferings while taking treatment, as am in patient as well as an outpatient. Hence, the petitioner is entitle for compensation of Rs.40,000/- under the head of Pain and Sufferings.
34. Another point to be discussed herein, about the loss of income during laid up period and rest period. In the petition, he had stated that, he was Dambar Machine Operator and was earning a sum of Rs.16,000/- per month. In this regard, he 28 SCCH-18 MVC 1929/2019 has not produced any iota of documents, to show his definite income per month, prior to the accident. In such a situation, as per law, notional income has to be taken. During period of treatment, definitely, there was some difficulty to him, to do daily routine work and to do his work for livelihood at least for one and half month by looking in to the nature of the injuries sustained, by him. Hence, I am of the view that, he is entitled for compensation of Rs.21,000/- towards loss of income during the laid up period and rest period.
35. The petitioner herein, in connection with his treatment expenses, at the time of his evidence, placed 129 medical bills of Rs.4,08,792/- as per Ex.P8. Apart from this, had placed 15 advance bills, as per Ex.P.9. But, not produced any prescriptions, in support of the medical bills. At the time of cross examination of PW1, suggested to the witness that, 29 SCCH-18 MVC 1929/2019 bill number 40 to 55 is created bills. But, in support of the said suggestion, no contra materials to impeach the said medical bills. Apart from this, on going through the final bill and advance bill, as well as on going through the nature of the injuries sustained by the petitioner, I am of the view that, there is no access to disbelive the medical bills placed by the petitioner herein. Hence, the petitioner is entitled for compensation of Rs.4,08,792/- - towards medical expenses.
36. The petitioner herein, as per the medical records and also on going through the discharge summaries the petitioner had took the treatment as an inpatient for 5 times, as narrated above. Hence, during the period of treatment as an inpatient and as an outpatient, the petitioner could have spent some amount towards, food, nourishment, conveyance, as well as towards attendant charges. Hence, the 30 SCCH-18 MVC 1929/2019 petitioner is entitled for compensation of Rs.15,000/- towards attendant charges, food, and nourishment and conveyance charges.
37. Another material point of loss of future income is concerned, the petitioner herein, asserting that, he had sustained permanent disability, consequent upon the injuries sustained by him. In order to prove the same, the petitioner has relied on his evidence along with the wound certificate, with other medical documents. In the evidence of the PW1, reiterated the same thing forthcoming in the main petition. As already discussed above, wound certificate placed by him, as per Ex.P12, goes to show that, the petitioner had sustained one simple and one grievous injuries. To substantiate this, the petitioner had placed, wound certificate and x-rays for consideration. Apart from this, another material witness, by name Dr.Nagaraj 31 SCCH-18 MVC 1929/2019 B.N. examined as PW3, whose evidence bringforth for consideration, in connection with the proof of disability sustained by the petitioner, consequent upon the accident.
38. In the evidence of this material witness PW3, deposed that, on the history of RTA, the petitioner had sustained, open type IIIB compound fracture of the right leg. In this regard, the petitioner had treated in their hospital, through wound debridement, rotational flab with external fixator of the right tibia.
39. Further, he deposed that, on his recent examination, to assess the disability on 3.9.2022, on the basis of the complaint's of the petitioner, and on the basis of the clinical and radiological examination, he noticed that, disfigured right leg with deformity at the ankle reduced right ankle and knee movements. X-ray of right leg shows united fracture with implants in situ.
32 SCCH-18 MVC 1929/2019
40. Over all appreciation of the percentage of disability of the petitioner, on the point of mobility components, stability components, as well as on the basis of additional points, came to the conclusion that, total disability of the right lower limb at 42% and whole body disability is at 14%. In support of his evidence relied on clinical note and x-ray as per Ex.P15 and Ex.P16. Apart from this, the PW3 expressed that, x-ray of right leg shows united fracture with implant in situ.
41. At the time of cross-examination of this witness, answered that, he is not treated doctor. During the course of the treatment of the petitioner, he underwent surgery, and his fractures are united. Further denied the suggestion that, only to help the petitioner, he had assessed the disability in higher side.
33 SCCH-18 MVC 1929/2019
42. Over all appreciation of the medical documents as well as the evidence of PW2, I am of the view that, the percentage of disability with respect to the whole body expressed by the witness is little bit exorbitant. On appreciation of the entire medical documents, it is apt to take the percentage of whole body disability of the petitioner is at 12% instead of 14%. The same will meets the ends of justice.
43. In connection with the age of the petitioner is concerned, on going through the cause title of the petition reveals that, as on the date of the petition, his age was 52 years. In support of the age proof, he has placed Aadhaar Card ad driving licence marked at Ex.P10 and Ex.P.11, for consideration. On going through the driving licence, pertaining to the petitioner, the date of birth of the petitioner has been mentioned as 15.3.1964. The accident 34 SCCH-18 MVC 1929/2019 occurred on 23.2.2019. Therefore, as on the date of accident, the age of the petitioner is considered as 55 years. To the said age as per Sarla Verma case, multiplier '11' is to be taken into consideration.
44. Next factual aspect of the income of the petitioner is concerned, in the main petition, and also in the examination-in-chief evidence, it is the assertion of the petitioner that, prior to the accident, he was working as a Dambar Machine Operator and getting an income of Rs.16,000/- per month. In support of his avocation, and definite income per month, he has not placed any iota of documents. In such a situation, as per law, notional income has to be taken into consideration. But the said notional income is to be taken judiciously, by taking into consideration of the year of the accident. Hence, by keeping in mind about the year of the institution of this case, and also, as per the notional income chart, 35 SCCH-18 MVC 1929/2019 I am of the view that, it is apt to take the notional income of the petitioner as Rs.14,000/-.
45. In the light of my detailed discussions held above, no doubt injuries sustained by the petitioner, definitely come in the way of his future, in a slight manner, to do his daily routine work, as well as to do his work for livelihood on going through his age criteria. Hence, the petitioner herein, is entitled for compensation under loss of future income as follows:
Rs.14,000 X 12 X 11 X12/100= Rs.2,21,760/-.
46. Next factual aspect loss of amenities is concerned, due to the injuries mentioned in the wound certificate and in other medical documents, and on appreciation of the evidence of the PW3 in toto, I am of the view that, the petitioner will suffer a slight problem in future also, to do his normal work, as well as his work for livelihood, by looking into the condition of the petitioner along with the evidence of 36 SCCH-18 MVC 1929/2019 PW3. By taking into consideration of all these aspects, I am of the view that, the petitioner is entitled for Rs.20,000/- towards loss of amenities.
47. In connection with the future medication expenses is concerned, PW3 has stated thatthe petitioner requires one more surgery for removal of implantsand the cost of the said surgery is around Rs.60,000/-. But no estimation placed on record for consideration in order to have a clear idea about the approximate cost of the said surgery. Hence by looking into the entire medical records and need for surgery, I am of the view that the petitioner is entitled for compensation of Rs.20,000/- under the head of future medical expenses.
48. In view of my due discussions held above, on various aspects, the petitioner is entitled for compensation in to to, under the following heads: 37 SCCH-18 MVC 1929/2019
Compensation heads Compensation
amount
1.Pain and Suffering Rs. 40,000-00
2.Loss of income during Rs. 21,000-00
laid-up period and rest
period
3. Medical expenses Rs. 4,08,792.00
4. Attendant, Rs. 15,000-00
Nourishment and
Conveyance Charges
5. Loss of future income Rs.2,21,760-00
due to disability
6. Loss of Amenities Rs. 20,000-00
7. Future medication Rs. 20,000-00
Total Rs. 7,46,552.00
49. Accordingly, the petitioner is entitled for compensation of Rs.7,46,552 (Rupees Seven Lakhs Forty Six Thousand, Five Hundred and Fifty Two only), along with interest @ 6% per annum, as per the proposition laid down by the Honourable High court of Karnataka in, MFA No.103557/2016, between Sri Ram General Insurance Company Limited V/S. Lakshmi And 38 SCCH-18 MVC 1929/2019 Others dated. 20.03.2018. And MFA No.30131/2019 dated.12.5.2020, from the date of the petition, till the realization of the award amount.
LIABILITY:
50. As regards the liability is concerned, it is the assertion of the petitioner that, due to the actionable negligence on the part of the rider of the Motorcycle bearing registration No.KA-02-JF- 6992, alleged accident had taken place. The evidence given by the petitioner in connection with the issue No.1, remained unshaken. As such, it is the strong assertion of the petitioner that, the respondent No.1 being the owner and the respondent No.2 being the insurance company, of the offending vehicle, are jointly and severally liable to pay the compensation to the petitioner.
51. As per the records insurance policy pertaining to the offending vehicle was valid from 39 SCCH-18 MVC 1929/2019 11.01.2019 to 10.01.2020. The alleged accident had taken place on 23.2.2019. This aspect and existence of insurance policy has not been seriously disputed by the other side. There is no evidence about the violation of terms and conditions of the insurance policy. Added to this, the respondent No.2 has not placed any cogent and convincing evidence, to show that, there was a contributory negligence, to fix the liability on the respondent No.3.
52. As such, I am of the view that, the respondent No.1 being the owner and the respondent No.2 being the insurance company of the offending vehicle are jointly and severally liable to pay compensation to the petitioner. However, the respondent No.2, being the insurance company and indemnifier has to satisfy the award. In view of the valid insurance policy, the respondent No.2 is liable to pay the compensation with interest at 6% p.a. 40 SCCH-18 MVC 1929/2019 from the date of petition, till its realization. Accordingly, I am answering the issue No.2 partly in the Affirmative.
ISSUE NO.3:
53. In view of above discussions on issue Nos.1 & 2, I proceed to pass the following;
*O R D E R* The claim petition filed by the petitioner U/s 166 of M.V. Act is partly allowed with cost.
Consequently, the petitioner is entitle for compensation of Rs.7,46,552 ( Rupees Seven Lakhs Forty Six Thousand, Five Hundred and Fifty Two only), along with interest @ 6% per annum, from the date of the petition, till the realization of the award amount.
41 SCCH-18 MVC 1929/2019
The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy, the respondent No.2 is liable to pay the compensation with interest at 6% p.a. from the date of petition till its realization within two months from the date of this order.
After deposit of the compensation amount with interest, 40% is directed to be deposited in any Nationalized/Scheduled bank in F.D for a period of 3 years. And remaining 60% shall be released to the petitioner through due process of law.
Advocate fee is fixed at Rs.500/-.
Draw award accordingly.
(*Dictated to the stenographer through on-line, corrected by me and then pronounced in open court on this the 16th day of February 2024).
(V.NAGAMANI) III ADDL.SMALL CAUSES JUDGE 42 SCCH-18 MVC 1929/2019 ACMM, BANGALORE.@ *ANNEXURE* List of witnesses examined on petitioner's side:
PW1 Shri Channappa PW2 Dr.S. Ramachandra PW3 Dr.Nagaraj B.N.
List of documents exhibited on petitioner's side:
Ex.P1 FIR with complaint Ex.P2 Statement of K.M. Channappa Ex.P3 Spot mahazar Ex.P4 MVA report Ex.P5 Notice issued under Sec.133 of MV Act Ex.P6 Charge Sheet Ex.P7 5 Discharge summaries Ex.P8 Medical bills Ex.P9 Advance bills Ex.P10 Aadhar card Ex.P11 D.L. Ex.P12 Wound Certificate Ex.P13 OPD slip Ex.P14 X-ray Ex.P15 Clinical Notes 43 SCCH-18 MVC 1929/2019 Ex.P16 X-ray
List of witnesses examined on respondents' side:
RW.1 Shri Jayaram RW.2 Shri. S. Narendran
List of documents exhibited on respondents' side:
Nil III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.