Bangalore District Court
Shri Chethan B.R vs National Insurance Co. Ltd on 31 January, 2023
KABC020100832019
IN THE COURT OF III ADDL.JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL
CAUSES BENGALURU
(SCCH18)
Dated: This the 31st day of January 2023
Present: V.NAGAMANI
B.A.L., LL.B., LL.M.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BENGALURU.
M.V.C.No.2175/2019
Petitioner Shri Chethan B.R.,
Son of Late B.T.Rajendra,
Aged about 32 years,
Residing at No.206,
Ramson's Premier Galaxy,
Chunchaghatta Main Road,
Ganapathipur,
Bengaluru560 062.
Permanent Address:
No.862, Halebudanur,
Mandya Taluk, Budanuru,
Mandya 571 404.
(By Pleader Shri
2 SCCH-18 MVC 2175/2019
P.Puttaraju )
V/s
Respondents 1.National Insurance Co. Ltd.,
Regional Office, No.144,
2nd floor, Shubharam
Complex,
M.G. Road,
Bengaluru560 001.
(By Pleader Smt.Geetha Raj)
2. Shri A.Deepak,
Son of Ganapathi Rao,
No.2, 5h A Main, Behind
Vinayaka Temple,
Kothanoor Dinne,
Bengaluru560 076.
(By Pleader Shri Reeyazulla
Sharief)
*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,
claiming compensation of Rs.60,00,000/ on
account of injuries sustained by him, in a road traffic
accident.
3 SCCH-18 MVC 2175/2019
*FACTS OF THE CASE IN NUTSHELL*
2. Facts leading to the case of the petitioner
forthcoming in the petition that, on 6.1.2019 at
about 6.30 a.m. the petitioner was proceeding as a
pillion rider in a motor cycle bearing registration
No.KA51EZ8773 along with his friend Chethan
B.G., who was riding the motor cycle on Gottigere
Main Road towards Gouravnagar from South to
North direction in a slow and cautious manner,
when they reached near Royal County Main Road, at
that time a car bearing registration No.KA05MY
2708, which was coming form J.P. Nagar 8th Stage,
Royal County Brook Hevan Layout cross road, driven
its driver with high speed in a rash and negligent
manner without observing the traffic rules and
regulations, suddenly took left turn towards North
direction and dashed against the motor cycle from
the wrong side. Due to the terrible impact, the
petitioner fell down and sustained grievous injuries.
4 SCCH-18 MVC 2175/2019
3. It is further stated that, immediately the
petitioner was shifted to Supra Multi Speciality
hospital, Bengaluru, wherein, he was given first aid
treatment and then he was shifted to Fortis Hospital,
Bengaluru, wherein, he was treated as an inpatient.
The petitioner had spent huge amount 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 32 years, Real Estate marketing
business earning a sum of Rs.50,000/ 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
driver of the offending vehicle bearing No.KA05
5 SCCH-18 MVC 2175/2019
MY2708. In this regard, case was registered against
the driver by the jurisdictional Kumaraswamy Layout
Traffic Police as per Crime No.3/2019. As such, the
respondent No.1 being the insurer and the
respondent No.2 being the owner 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 & 2 have
appeared before the court through their respective
counsel and filed the written statements, in answer
to the case of the petitioner.
7. In the objection of the respondent No.1 has
not seriously disputed the accident and the injuries
sustained by the petitioner. It is the contention of
the respondent that, the accident had occurred due
to the negligence of the rider of the motor cycle
6 SCCH-18 MVC 2175/2019
bearing No.KA05MY2708. Further contended that,
at the time of accident, the vehicle was driven by the
person, who was holding Learner's licence and was
not accompanied by the person holding valid driving
licence as contemplated under Rule 3 of the Central
Motor Vehicle Rules, 1989, which amounts of
breach of policy terms and conditions. Further,
contended that, the compensation claimed by the
petitioner is highly excessive, exorbitant and without
any basis. With all these main grounds, prayed to
dismiss the petition with cost.
8. In the objection of the respondent No.2 has
stated that, he is the R.C. owner of the car bearing
No.KA05MY2708 and the said car was driving by
him, on 6.1.2019, by holding Learner's Licence and
he was accompanied by one licence holder and the
said licence holder was instructing this respondent
to drive the same. Further contended that, on the
date of accident, car was driven by his driver slowly
7 SCCH-18 MVC 2175/2019
and cautiously, the rider of the motor cycle rode the
same in a rash and negligent manner and caused
the accident. On the date of the accident, the car
has been insured with the respondent No.1 and it is
valid as on the date of the accident. With all these
main grounds, prayed to dismiss the petition with
cost.
9. 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
had sustained injuries in an accident that
was occurred due to the rash and negligent
driving of the driver of the car bearing
registration No.KA05MY2708 on
6.1.2019 at about 6.30 p.m. near Broker
Heavan Layout, Gotigere main road,
Bengaluru?
8 SCCH-18 MVC 2175/2019
2) Whether the petitioner is entitled for the
compensation as prayed for? If so, at what
rate ? from whom?
3) What order or award?
10. In order to substantiate the case of the
petitioner by name Chethan B.R., during the course
of evidence, placed his affidavit evidence, in lieu of
examinationinchief, who examined as PW1 in the
case on hand. At the time of his evidence, 14
documentary evidence got marked as Ex.P1 to
Ex.P14. Apart from his evidence placed the evidence
of Raghu Y.C. Medical Record Officer as PW2. At the
time of his evidence got marked the document as
Ex.P15 & Ex.P16. In addition to their evidence
placed the evidence of Dr.Veerresha U. Mathad as
PW3. At the time of his evidence got marked the
document as Ex.P17 to Ex.P19, for consideration.
11. On the other hand, to prove the defenses
forthcoming in the objection of the respondent No.1,
9 SCCH-18 MVC 2175/2019
has examined M.R.Girish, Superintendent, RTO
office, Jayanagar. At the time of his evidence got
marked the document as Ex.R1 to Ex.R3, Ex.R8 &
Ex.R9. Further examined Himendra Kartantik
Simha M.N. Administrative Officer of the respondent
No.1 company as RW2. At the time of his evidence
got marked the document as Ex.R4 & Ex.R5.
Further examined R.C.Owner of the car by name
A.Deepak examined as RW3. At the time of his
evidence photos and C.D got marked the document
as Ex.R6 & Ex.R7. Apart from their evidence
examined ARTO, Rajajinagar, Bengaluru by name
Milinadkumar examined as RW4. At the time of his
evidence got marked the document as Ex.R10, for
consideration. After completion of the stage of
evidence, matter was set down for arguments.
12. Heard the arguments of both the counsel.
And perused the materials available on record.
10 SCCH-18 MVC 2175/2019
13. After hearing the arguments of both the
learned counsel and by scrutinizing the evidence
adduced by both the parties in toto, this court
proceed to answer the above issues 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:
14. In connection with this issue, burden is on
the petitionerChethan B.R., to prove that, due to
the actionable negligence on the part of the driver of
the offending vehicle offending vehicle bearing
registration No.KA05MY2708, alleged accident
had taken place. And in the said accident, the
petitioner had sustained grievous injuries.
15. On the other hand, both the respondents
though not seriously denied the accident and
injuries sustained by the petitioner, strongly denied
11 SCCH-18 MVC 2175/2019
about the actionable negligence on the part of the
driver of the offending vehicle. And also disputed
with respect to the D.L. of the driver of the offending
vehicle. And it is also contended that, due to the
negligence on the part of the rider of the defending
vehicle, alleged accident in question and its
consequences had taken place.
16. On going through the above issue, burden
is on the petitioner to prove the same on the touch
stone of preponderance of probabilities. To
discharge the burden lies on the petitionerShri
Chethan B.R. placed his affidavit evidence, wherein
he reiterated the main petition averments stating
that, as on the date of the accident, while he was
proceeding in the defending vehicle as pillion rider,
due to the negligence on the part of the driver of the
car accident in question had taken place and in the
said accident he sustained grievous injuries. Among
the documentary evidence produced by the petitioner
12 SCCH-18 MVC 2175/2019
Ex.P1 to Ex.P6 are the material documents for
consideration. Remaining documents and evidence
of PW2 and PW3 are to be considered in detail at the
time of discussion of issue No.2. On the other hand,
to prove all the defenses forthcoming in the written
statements, respondent No.1 and the respondent
No.2, as discussed in detail relied on the evidence of
RW1 to RW4 along with the documentary evidence,
Ex.R1 to Ex.R10 for consideration. In the evidence
of these witnesses, mainly stressed the point of D.L
pertaining to the offending vehicle, but not with
respect to the actionable negligence on the part of
the driver of the offending vehicle. And not produced
any documents to impeach the police papers, to
prove the innocence of the driver of the offending
vehicle, and to prove the negligence on the part of
the rider of the defending vehicle. Hence, scrutiny of
the documentary evidence placed by the petitioner is
necessary to discuss herein.
13 SCCH-18 MVC 2175/2019
17. On taking birds eye view towards the police
papers reflect that, accident in question had taken
place on 6.1.2018. On the same day, first
information given against the driver of the offending
vehicle, who is none other than the respondent No.2
herein, alleging that, he had committed the offences
punishable under section 279 and 337 of IPC.
There is no delay in giving first information about the
accident. And in the column No.10 as well as in the
recitals of Ex.P1 & annexed complaint, there is a
clear narration about the negligent act on the part of
the driver of the offending vehicle, which caused
accidental injuries to him. To prove the innocence of
the driver of the offending vehicle, no effort has been
made by the said driver to prove his innocence by
challenging the recitals of Ex.P1 and not filed any
counter complaint before competent court of law to
shaken the case of the petitioner.
14 SCCH-18 MVC 2175/2019
18. Added to this, on going through the recitals
of the spot mahazar, spot sketch, report of the IMV
inspector and wound certificate marked at Ex.P2 to
Ex.P5 reveal about the involvement of the offending
vehicle in the accident and the recitals of the spot
sketch and accident spot noted in the sketch gives
clear indication, that due to the mistake on the part
of the driver of the offending vehicle, accident in
question had taken place to disprove the mahazar
and sketch prepare by the investigation officer in the
presence of punch witnesses, immediately after
registration of the case against the driver of the
offending vehicle. As per the report of the IMV
inspector, the accident was not due to any
mechanical defects of the vehicles involved in the
accident and the damages noted in the said
document remained unimpeached. And wound
certificate reveals that, on the history of RTA, the
petitioner had sustained grievous injury. The
15 SCCH-18 MVC 2175/2019
narration forthcoming in the aforesaid material
documents remained unshaken by the other side,
though evidence is available on record from the side
of respondents.
19. Ultimately, on going through the final
report submitted by the investigation officer, marked
at Ex.P6 reflects that, after thorough investigation
process, the investigation officer had filed final report
against the driver of the offending vehicle by name
Deepak, who is none other than the respondent No.2
in the case on hand, on the allegation that, he has
committed the offences punishable under section
279 an 338 of IPC. In column No.17 of the Ex.P6
there is a clear narration about the manner of
accident said to have committed by the driver of the
offending vehicle. On the other hand RW1 to RW4 in
their respective evidence, no contra materials placed
to disprove the evidence given by the petitioner in
support of the issues framed on the point of
16 SCCH-18 MVC 2175/2019
actionable negligence on the part of the driver of the
offending vehicle.
20. In order to test the veracity of the evidence
of the witnesses, on perusal of the crossexamination
of PW1 evident that, though several questions put to
this witnesses in para No.1 & 2, nothing worthwhile
culled out from his mouth to prove the innocence of
the driver of the offending vehicle and to prove the
negligence on the part of the rider of the defending
vehicle. At the time of crossexamination of RW1 to
RW4, nothing is elicited to prove the negligence on
the part of the rider of the defending vehicle.
21. Overall appreciation of the evidence
available on record, to disprove the negligence on the
part of the driver of the offending vehicle, no
satisfactory rebuttal evidence is available from the
side of the respondents. And also no piece of paper
is available on record to disbelieve the case of the
petitioner and to say that, due to the sole negligence
17 SCCH-18 MVC 2175/2019
on the part of the rider of the motor cycle accident in
question had taken placed and the petitioner had
engineered the prosecution papers for the sake of
getting compensation from the respondents.
22. In the light of the above discussions, I am
of the view that, due to the negligence on the part of
the driver of the offending vehicle, alleged accident
had taken place, and in the said accident, the
petitioner had sustained injuries. On the other
hand, the respondents have utterly failed to prove
the defenses forthcoming in the written statement,
by placing rebuttal evidence. Accordingly, I am of
the view that, the petitioner has placed satisfactory
and reliable evidence, to prove the above issue to the
effect that, the alleged accident had occurred due to
the rash and negligent driving of the driver of the Car
bearing registration No.KA05MY2708. Hence,
without making much discussion on the point of the
rash and negligent driving of the driver of the
18 SCCH-18 MVC 2175/2019
offending vehicle, I am answering the Issue No.1, in
the Affirmative.
ISSUE NO.2 :
23. This issue is with respect to the
entitlement of relief claimed by the petitioner. The
petitioner through this petition claiming
compensation of Rs.60,00,000/ on account of the
injuries sustained by him, in the accident, under
different heads.
24. 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
19 SCCH-18 MVC 2175/2019
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 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. "
25. In connection with the injuries sustained
by the petitioner in the accident, had produced
wound certificate marked at Ex.P5. The said
document discloses that, he sustained the following
injuries:
Severe Head injury with left acute SDH mass
effect and midline shift
20 SCCH-18 MVC 2175/2019
26. In connection with the above injury, doctor
opined that, the said injury is grievous in nature.
Apart from this, the petitioner has produced 3
discharge summaries, medical bills as per Ex.P7 to
Ex.P10. photos with one CD as per Ex.P14. Apart
from his evidence medical record officer by name
Raghu Y.C. was examined as PW2. he has placed 3
inpatient case sheets as per Ex.P16. In addition to
his evidence, Dr.Veeresha, was examined as PW3,
has placed OPD file, on line printout guidelines, and
CT scan report as per Ex.P17 to Ex.P19. On going
through the discharge summaries of Fortis Hospital
as per Ex.P7 to Ex.P9 discloses that, the petitioner
had taken the treatment as an inpatient from
6.1.2019 to 11.1.2019, 12.2.2019 to 17.2.2019
and 20.2.2019 to 21.2.2019. For having taken the
note of the nature of the injuries sustained by him,
and by keeping in mind about his sufferings during
21 SCCH-18 MVC 2175/2019
the said period of treatment, in connection with the
grievous injuries, and also mode of treatment given
to him, in the hospital, and by taking in to
consideration of nature of injuries sustained by him,
I am of the view that, the petitioner is entitle for
compensation of Rs.40,000/ towards pain and
suffering.
27. 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 working as a real estate marketing business and
earning Rs.50,000/ per month. To substantiate
this, he produced only M.B.A., Convocation
certificate and B.A., convocation certificates as per
Ex.P11 & Ex.P12. In connection with his definet
work and income per month, no other documents are
produced for consideration. At the time of cross
examination of PW1 in para No.3 admitted that, he
has not produced any documents to show that he
22 SCCH-18 MVC 2175/2019
was earning Rs.50,000/ per month from his real
estate business. On the other hand, it is to be noted
that, the injuries sustained by him was grievous in
nature, as per the wound certificate. On going
through the discharge summaries of Fortis Hospital
as per Ex.P7 to Ex.P9 discloses that, the petitioner
had taken the treatment as an inpatient from
6.1.2019 to 11.1.2019, 12.2.2019 to 17.2.2019
and 20.2.2019 to 21.2.2019. Hence, definitely
there was some difficulty to him, during the period of
treatment, to do daily routine work and to do his
work for livelihood at least for one month. Hence, I
am of the view that, he is entitled for compensation
of Rs.14,000/ towards loss of income during the
laid up period and rest period.
28. The petitioner herein, in connection with
his treatment expenses, at the time of his evidence,
placed 34 medical bills of Rs.7,02,377/ as per
23 SCCH-18 MVC 2175/2019
Ex.P10. At the time of crossexamination of PW1,
except suggestion that, the medical bills are created
documents, no other contra materials are placed on
record to impeach the medical bills submitted by the
petitioner. Apart from this, on going through the
nature of the injuries sustained by the petitioner will
not create any suspicious circumstances to
disbelieve the said medical bills marked at Ex.P10.
Hence, the petitioner is entitled for compensation of
Rs.7,02,377/ under the head of medical
expenses.
29. The petitioner herein, as per the medical
records, had sustained grievous injuries of "Left
frontoparietal, temporoparietal and parietooccipital SDH,
aspiation with multiple lung contusions." On going
through the discharge summaries of Fortis Hospital
as per Ex.P7 to Ex.P9 discloses that, the petitioner
had taken the treatment as an inpatient from
6.1.2019 to 11.1.2019, 12.2.2019 to 17.2.2019
24 SCCH-18 MVC 2175/2019
and 20.2.2019 to 21.2.2019. Later on, he was
advised to take followup treatment. As such, during
the period of treatments as an inpatient, and further
treatment, the petitioner could have taken the
assistance of the attendant for travelling, and he
could have spent some amount towards travelling,
food and nourishment. Hence, the petitioner is
entitled for compensation of Rs.10,000/ towards
attendant charges, food, and nourishment and
conveyance charges.
30. 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 had relied on
his evidence along with the wound certificate, along
with other medical documents. In the evidence of
the PW1, reiterated the same thing forthcoming in
the main petition. As already discussed above,
25 SCCH-18 MVC 2175/2019
discharge summaries placed by him, as per Ex.P7 to
Ex.P9, goes to show that, he had sustained the
injuries as stated above. To substantiate this, the
petitioner has placed, wound certificate and xray for
consideration. Apart from this, the petitioner had
placed the evidence of the doctor by name
Dr.Veeresha U Mathad as PW3.
31. In the evidence of this material witness,
PW3, deposed that, on the history of RTA, the
petitioner had sustained injuries of "Left
frontoparietal, temporoparietal and parietooccipital SDH,
aspiation with multiple lung contusions. In this regard,
he had taken treatment at Fortis hospital. And
explained about the mode of treatments taken by
him as per medical records as follows: " He underwent
emergency left FTP craniotomy and evaluation of acute subdural
haematoma under GA on 6.1.2019. post operatively, he was
managed in ICU and he was veined off from ventilator gradually
and extubated on 7.1.2019, his GCS improved to E3V5M6. And
after shifting him to the ward he was given regular
26 SCCH-18 MVC 2175/2019
physiotherapy and neuro rehabilitation during his
hospitalisation and discharged on 11.1.2019. At the time of his
discharge advise to continue the medication. Thereafter he was
readmitted on 12.2.2019 for cranioplasty and he underwent left
fronto temporo parietal cranioplasty using autologus bone under
GA on 13.2.2019 postoperatively he was managed in ICU and
discharged on 17.2.2019 with advise of followup treatment.
Thereafter readmitted on 20.2.2019 with complaints of
numbness of tung and upper lip followed by right upper lip
extremists lasting for 34 minutes. He had two episodes of
seizures on 19.2.2019 and 20.2.2019. On admission his EEG
showed spikes of waves suggestive of seizure activity. His CT
scan showed gliosis in left frontal and temporal lobe with
epidural collection. He was treated with medical treatment. He
was started on 2nd anti seizure medication. He was discharged
on 21.2.2019. "
32. Further he deposed that, on recent
examination of the petitioner on 22.2.2021, he
noticed as follows: His higher mental functions were
normal. his EEG had done showed evidence of seizure activity.
His CT brain was done on 12.2.2021, which showed post left
fronto temporoparietal craniotomy status. Based on his
27 SCCH-18 MVC 2175/2019
observation and on the basis of Gazette Notification
guidelines 2018 and based on guidelines by Indian
Epilepsy Association and Indian Epilepsy 2017
noticed as follows: "His intellectual disability, speech
disability, Carnial nerve disability, motor system
disability, sensory system disability, bladder disability as
nil. And on evaluation of the point of post head injury,
epilepsy and fits, convulsions came to the conclusion by
stating that, the petitioner had a permanent global neuro
disability of 25% and the petitioner is suffering with post
traumatic seizure (epilepsy). As such he is advised to
continue medications indefinitely and not to drive 2
wheeler or 4 wheeler and advised to avoid working at
unprotected heights for moving machinery, live electrical
cables". In support of all these evidence of PW3 relied
on 2 OPD file and CT scan report as per Ex.P17 to
Ex.P19 including print out guidelines.
33. At the time of crossexamination of PW3,
answered that, he was not the treated doctor, but he
scrutinized discharge summary inpatient record and
28 SCCH-18 MVC 2175/2019
outpatient record of Fortis hospital. And he admitted
that, in the Ex.P7 and Ex.P8, no whisper about
seizure conversion, but in connection with the
second time admission of the petitioner in the
hospital there is a mention in the regard. And also
admitted that, when the petitioner had been to the
hospital for third time, no whisper about seizures.
But at the time of his recent examination, he found
the said problem. And admitted that, after discharge
from the hospital for the third time, in order to show
that, the petitioner was continuously suffering
seizure conversions, has not produced any iota of
documents. But in continuation, he stated that, on
the basis of medication, which was taken by the
petitioner, he noted about the seizures. Further, he
admitted that, no proper explanation in Ex.P17
about the medication of petitioner and at the time of
discharge from the hospital, he was in stable
condition and the advises forthcoming in the page
29 SCCH-18 MVC 2175/2019
No.2 of Ex.P17 is not forthcoming in the discharge
summary. And also he admitted that, narration
made in the para No.8 of his chiefexamination about
the problem of the petitioner is not forthcoming in
the discharge summary.
34. Added to this, he denied the suggestion
that, he assessed the disability of the whole body of
the petitioner in higher side. And also denied the
suggestion that the petitioner is not having further
problem in future as noted by him. Over all
appreciation of the evidence of PW1 to PW3, along
with the medical documents, I am of the view that
the percentage of the disability of the petitioner
expressed with respect to the whole body, seems
little bit exorbitant. Hence, it is apt to take the
percentage of disability of the whole body of the
petitioner consequent upon the accidental injuries,
as 18% instead of 25%. The same will meet the
ends of justice.
30 SCCH-18 MVC 2175/2019
35. 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 32 years. In support of the age proof,
he has placed Aadhar card marked at Ex.P13. On
going through the said documents, pertaining to the
petitioner, the date of birth of the petitioner has been
mentioned as 22.10.1986. The accident was
occurred on 6.1.2019. Therefore, as on the date of
accident the age of the petitioner is considered as 33
years. To the said age as per Sarla Verma case,
multiplier '16' is to be taken into consideration.
36. Next factual aspect of the income of the
petitioner is concerned, in the main petition, and
also in the examinationinchief evidence, it is the
assertion of the petitioner that, prior to the accident,
he was doing real estate marketing business, and
used to earn Rs.50,000/ per month. To prove the
31 SCCH-18 MVC 2175/2019
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. Alleged accident had taken place in
the year 2019. Hence, by keeping in mind about the
year of the institution of this case, and also, as per
the notional income chart, I am of the view that, it is
apt to take the notional income of the petitioner as
Rs.14,000/ for the year 2019.
37. 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. Hence, the petitioner herein,
is entitled for compensation under loss of future
income as follows:
Rs.14,000 X 12 X 16 X 18/100= Rs.4,83,840/
32 SCCH-18 MVC 2175/2019
38. Next factual aspect loss of amenities is
concerned, due to the injuries mentioned in the
wound certificate and also as per the evidence of the
doctor PW3, and the disabilities mentioned with
respect to the whole body of the petitioner, due to
the accidental injuries, and overall appreciation of
the entire medical documents, including the xrays,
photos with CD and some of the opinion expressed
by the doctor PW3, in his evidence and at the time of
his cross examination, I am of the view that,
definitely the petitioner will suffer a slight problem in
future also, to do his normal work and avocation. By
taking into consideration of all these aspects, I am of
the view that, the petitioner is entitled for
Rs.40,000/ towards loss of amenities.
39. In connection with the future medication
expenses is concerned, the PW3 in his evidence has
not stated anything about future medication.
Hence, the petitioner is not entitle for any
33 SCCH-18 MVC 2175/2019
compensation of under the head of future
medication.
40. In view of my due discussions held above,
on various aspects, the petitioner is entitled for
compensation in toto, under the following heads:
Compensation heads Compensation
amount
1. Pain and Suffering Rs. 40,00000
2. Loss of income during Rs. 14,00000
laidup period and rest
period
3. Medical expenses Rs.7,02,37700
4. Attendant, Rs. 10,00000
Nourishment and
Conveyance Charges
5. Loss of future income Rs.4,83,84000
6. Loss of Amenities Rs. 40,00000
7. Future medication NIL
Total Rs.12,90,21700
41. Accordingly, the petitioner is entitled for
compensation of Rs.12,90,217/ (Rupees twelve
lakhs ninety thousand two hundred and
seventeen only) along with interest @ 6% per
34 SCCH-18 MVC 2175/2019
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 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:
42. As regards the liability is concerned, in the
case on hand, it is the assertion of the petitioner
that, due tot he actionable negligence on the part of
the driver of the offending vehicle, accident in
question had taken place and the evidence adduced
in this regard remained unshaken. As such, the
respondent No.1 being the insurer and the
respondent No.2 being the insured of the offending
vehicle are jointly and severally liable to pay the
compensation to the petitioner.
35 SCCH-18 MVC 2175/2019
43. On the other hand, the respondent No.2
being the owner of the offending vehicle contended
that, as on the date of the accident insurance policy
and D.L. pertaining to the driver of the vehicle were
valid. Hence, the insurance company is liable to pay
the compensation. On the contrary, the respondent
No.1 company though not denied the insurance
policy pertaining to the offending vehicle strongly
contended that, at the time of accident the driver of
the offending vehicle had no valid and effective D.L.
But he was possessed LLR, and not followed the
procedures by having LLR, while driving the vehicle
in question. Thereby he violated the terms and
conditions of the insurance policy. As such, the
company is not liable to pay the compensation
determined by this court to the petitioner.
44. In support of the defenses forthcoming in
the written statement relied on the evidence of RW1
M.R. Girish, Superintendent of RTO, Jayanagar. At
36 SCCH-18 MVC 2175/2019
the time of his evidence produced admission record,
certified copy of the Learner's licence and also the
certified copy of D.L. extract. In support of these
documents deposed that, on 6.1.2019 Deepak
Adamar had Learner's licence as per Ex.R2, which
was in force from 16.1.202018 to 16.5.2019.
Subsequently, as per EX.R3 he obtained D.L. on
24.3.2019, as per the M.V. Rules the person, who
holds LLR, has to put L. Board in th vehicle and also
he has to sit along with the person who holds valid
D.L. to instruct him to drive the vehicle.
45. On going though the the evidence of this
witness, it is crystal clear that, the driver of the
offending vehicle had LLR at the time of accident.
During the course of his crossexamination of this
witness, no material points culled out to disprove the
point that, the driver of the offending vehicle was
holding LLR at the time of accident. And also no
materials culled to prove the defence of the
37 SCCH-18 MVC 2175/2019
respondent company. And in page No.4 para No.1 of
the crossexamination, he admitted that, in the
photo with CD furnished by the petitioner, there is a
clear mention about putting of L Board and the
driver of the offending vehicle has not paid any fine
for having violated the rules and regulations of road
transport. At the time of further evidence of RW1
along with authorization letter produced LLR extract
46. On the other hand, the insurance company
relied on the evidence of its Administrative officer by
name Himendra Karthik Shimha as RW2, who
reiterated the defaces forthcoming in the written
statement and also produced the insurance policy as
Ex.R5. The said policy is standing in the name of
the respondent No.2 Deepak with respect the
offending vehicle. And as per said document the
said policy was valid 8.11.2018 to 7.11.2021. The
accident in question had taken place on 6.1.2019.
It is crystal clear from the said document that, as on
38 SCCH-18 MVC 2175/2019
the date of the accident the policy was valid. At the
time of crossexamination of RW2 admitted that, no
whisper in the charge sheet that, the driver of the
offending vehicle had committed the offences
punishable under section 3 (a) under section 181
of M.V.Act. And also not seriously denied the
suggestion that, as per the recitals of Ex.P6 the drier
of the offending vehicle was riving the vehicle with
the assistance of one Suresh Kumar Shetty. And no
material answers given to disbelieve the stand of the
respondent No.2 that the driver had valid LLR as on
the date of the accident. And about violation of the
terms and conditions of the insurance policy.
47. In addition to this, on going through the
evidence of RW3 A.Deepak RC owner cum the
driver of the offending vehicle, at the time of
accident. In his evidence stated that, at the time of
accident he was holding valid Learners' Licence and
he was accompanied by his friend who had valid
39 SCCH-18 MVC 2175/2019
driving license and also his car was having L Board
sign on both front and back side of the car. In
support of the said evidence, two photos with CD
were placed as per Ex.R6 & Ex.R7. At the time of
his crossexamination, answers given him in para
No.1 clearly evident that, he was the RC ownercum
driver of the offending vehicle as on the date of the
accident. And he answered that, along with him, one
Santhosh was instructing him to drive the vehicle.
And denied the suggestions that, he has violated the
terms and conditions of the policy, but not denied
about the filing of charge sheet against him.
48. Another witness Milind Kumar examined
as RW4 who being RTO of Bengaluru Rajajinagar
produced DL extract as per Ex.R10. At the time of
his crossexamination by admitting the rules and
procedures which are to be followed by the person
who is holding LLR answered that, he is not having
personal knowledge about the offending vehicle.
40 SCCH-18 MVC 2175/2019
49. Over all appreciation of the evidence given
by the respondents, in one word it is to be noted
that, as on the date of the accident the driver of the
offending vehicle had LLR. With respect to the
violation of the terms and conditions of the
insurance policy, and also with respect to the non
following of procedure by the driver of the offending
vehicle, having LLR, no satisfactory evidence is
available on record. Hence, the insurance company
cannot escape from its liability to pay compensation
to the petitioner. Since, it is the abundant duty of
the insurance company, to collect all the material
documents pertaining to the offending vehicle,
including the driving licence of the RC holder, before
issuance of the policy. In the case on hand, the
driver of the offending vehicle is not stranger, he was
R.C owner cum driver of the offending vehicle, at
the time of the accident. As such, the insurance
41 SCCH-18 MVC 2175/2019
company cannot say that, the company is not liable
to pay compensation.
50. Before coming to the conclusion in
connection with the above issue, it is apt to note the
proposition laid down in the following authorities.
1. In the authority reported in LAWS (SC
1195)1237 between New India Assurance Co.
Ltd., Vs. Mandar Madhav Tambe, it was observed
that, learners licence was also a valid licence.
2. LAWS (SC 204) 957 between
Mahamoda Vs. United India Insurance Co.
Ltd., it was observed by the Hon'ble Supreme court that,
if a person drives a vehicle by holding a Learner's licence
insurance liability exists.
3. In Reliance General Insurance Co.
Ltd., Vs. Sheela Devi & Others reported in
2018, Accident. CR 249 (P & H), it was observed
that, Learner's licence is also a valid licence.
4. In Shiva Paul Singh Vs. Lal Chand &
Others reported in 2010 ACJ 1120, it was
observed that, Learner's licence was also a valid licence.
42 SCCH-18 MVC 2175/2019
51. Apart from this, in number of decisions of
the Hon'ble Apex Court and our own Hon'ble High
Court of Karnataka, laid down the proposition
that, learners' license issued by a competent
authority, is a valid licence and a rider of learner,
need not accompany any instructor for a motor cycle,
as it is required in case of a car. Further it is
relevant to note that, in number of authorities, it was
observed that, a person having only LLR, has to be
accompanied by a driving instructor and the L board is
also to be displayed. If the said conditions are violated,
then the insurance company is not liable to comply with
the award.
52. In the case on hand, documents produced
by the RW1 to RW4 reveal that, as on the date of the
accident, insurance policy was valid and the driver of
the offending vehicle had LLR. And no strong
evidence to convince the court about the violation of
the terms and conditions of the insurance policy.
43 SCCH-18 MVC 2175/2019
Accordingly, as an indemnifier, the insurance
company has to pay the compensation with interest
at 6% per annum, Since, the insurance company
also comes under the purview of Article 12 of the
Constitution, its aim is to protect the interest of third
party. Accordingly, I am answering the issue No.2
partly in the Affirmative.
ISSUE NO.3:
53. In view of above discussion 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 entitled for compensation of Rs.12,90,217/ (Rupees twelve lakhs ninety thousand two hundred and seventeen only) along with interest @ 6% 44 SCCH-18 MVC 2175/2019 per annum, from the date of the petition, till its realization of the award amount.
The respondent No.1 & 2 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.1 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/ Schedule 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/. 45 SCCH-18 MVC 2175/2019
Draw award accordingly.
(**Dictated to the stenographer through online, corrected by me and then pronounced in open court on this the 31st day of January 2023**).
(V.NAGAMANI) III ADDL.SMALL CAUSES JUDGE & ACMM, BANGALORE.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 Shri Chethan B.R. PW2 Shri Raghu Y.C. PW3 Dr.Veeresha U.Mathad
List of documents exhibited on petitioner's side:
Ex.P1 True copy of FIR with complaint Ex.P2 True copy of Spot Mahazar Ex.P3 True copy of spot sketch Ex.P4 True copy of IMV report Ex.P5 True copy of wound certificate Ex.P6 True copy of final report Ex.P7 Discharge summary Ex.P8 Discharge summary Ex.P9 Discharge summary Ex.P10 Medical bills Ex.P11 Notarised copy of MBA convocation certificate Ex.P12 Notarised copy of B.A. convocation certificate Ex.P13 Notarised copy of Aadhar card 46 SCCH-18 MVC 2175/2019 Ex.P14 Photos with one CD Ex.P15 Authorisation letter Ex.P16 Inpatient case sheet Ex.P17 OPD file Ex.P18 Online print out guidelines Ex.P19 CT scan report along with Scan films List of witnesses examined on respondents' side:
RW1 Shri M.R. Girish RW2 Shri Himendra Kartantik Simha RW3 Shri A.Deepak RW4 Shri Milinadkumar
List of documents exhibited on respondents' side:
Ex.R1 Admission Record Ex.R2 Learner's Licence Extract Ex.R3 D.L. Extract Ex.R4 Authorisation letter Ex.R5 Policy copy Ex.R6 Photographs Ex.R7 CD Ex.R8 Authorisation letter Ex.R9 L.L. Extract Ex.R10 D.L. Extract
III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.