Bangalore District Court
To Prove Their Case Independently vs Liability Of The Insurance on 10 June, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 10th day of June, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.3829/2014
Sri. T. K. Lakshman, ..... PETITIONER
S/o. Late Krishna. T..L.,
Aged 32 years,
R/at No.114/1,
Puttanjaneyappa Layout,
5th Cross,
Deshbandhu Nagar,
Vidyaranyapura Post,
Bangalore North - 560 097.
(By Sri. H. V. Kumara Swamy, Adv.,)
V/s
1. National Insurance Company Ltd., ..... RESPONDENTS
144, Shubharam Complex,
2nd Floor, M. G. Road,
Bangalore - 01.
Policy issued by its Branch Office at,
1st Floor, Ramachandra Bldg,
73, Sampige Road,
Malleshwaram,
Bangalore -03.
(Policy No.60390131146265001143,
Date of validity from 09.07.2014 to
08.07.2015)
2 M.V.C.NO.3829/2014
(SCCH-7)
2. Mr. Ravish. K. V.,
S/o. Veeranna,
Major,
R/at No.48 & near 49 to Krishna Greens,
Deshabhandu Nagar,
D. B. Sandra,
Vidyaranyapura,
Bangalore - 97.
(R1- By Sri. V. Shrihari Naidu, Adv.,)
(R2- By Sri. Ramakrishna. P., Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 10,00,000/- with interest at the rate of 12% p.a., from the date of filing of the petition till realization and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 20.07.2014 at about 6.30 a.m., he was riding the Motor Cycle bearing Registration No.KA-04-EP-6359 slowly and cautiously, observing all traffic norms, on the said road from Western to Eastern direction, at that time, another Motor Cycle bearing Registration No.KA-04-HN-7161 ridden by its rider at a very high speed, rash and negligently and dashed against the said Motor Cycle. Consequently, he fell down and sustained grievous injuries on his body.
b) He was immediately shifted to Kethams Hospital, Bangalore, wherein, first-aid treatment was given and further 3 M.V.C.NO.3829/2014 (SCCH-7) shifted to Bangalore Baptist Hospital, Bangalore, wherein, he was treated as an inpatient. It is diagnosed that, he had sustained grievous injuries, like, Fracture contusion over the face with fracture mandible right and bilateral condyle parasymphysis and injuries to other parts of the body.
c) He was bed ridden and was under treatment and has spent nearly Rupees 2,50,000/- towards medical and nourishment expenses. He has to undertake further treatment and has to incur future medical expenses also. He has suffered from permanent disability. He is not able to lead a normal life prior to the said accident. He has suffered loss of income due to this accident.
d) The cause of the accident is the reckless riding by the rider of the Motor Cycle bearing Registration No.KA-04-HN-7161. In this regard, case has been registered by the Hebbal Traffic Police and have registered a case as against the rider of the vehicle.
e) The Respondent No.1 is the insurer and the Respondent No.2 is the owner of the vehicle in question. Hence, both the Respondents are jointly and severally liable to pay the compensation to him on the body of suffering of injuries, shock, pain and physical and mental agony, medical, nourishment and conveyance expenses and permanent disability, loss of income, future loss of earning capacity, discomfort and amenities. Hence, this petition.
3. Initially, though the notice was duly served on the Respondent No.1, it was remained absent and hence, it was 4 M.V.C.NO.3829/2014 (SCCH-7) placed as exparte on 24.11.2014. Later, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and as per the Order dated 06.01.2015 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.1 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 08.07.2015 passed on I.A.No.II and I.A.No.III, the written statement filed by the Respondent No.1 is taken on file.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel. But, inspite of giving sufficient opportunities, the Respondent No.2 has not filed the written statement.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition is not maintainable either in law or on facts of the case.
b) The present petition is bad for non-joinder of necessary and proper parties for the adjudication of the said petition and the rider of the Motor Cycle bearing Registration No.KA-04-Ex.P.-6359 did not had a valid and effective driving licence to ride the same on the date of the accident.
c) The injuries if any sustained by the Petitioner are simple in nature and the Petitioner has recovered from the same and he is leading a normal life as he was doing prior to the date of accident.
5 M.V.C.NO.3829/2014(SCCH-7)
d) It admits that, they have issued a policy of insurance in respect of the Motor Cycle bearing Registration No.KA-04-HN- 7161 in question in favour of the Respondent No.2 insured and the same was valid for the period from 09.07.2014 to 08.07.2015. However, the liability of its Insurance Company to indemnify the insured in respect of the said policy is as per the statute, terms, limitations and conditions of the policy and compliance of 64 VB of Insurance Act.
e) The insured 2nd Respondent has to prove before this Hon'ble Court that, the vehicular documents, like, R.C., F.C., Tax, etc., in respect of the said Motor Cycle were valid and current on the date of the accident and the person, who was riding the said Motor Cycle had a valid and effective driving licence to ride the same on the date of the accident. The owner of the vehicle willfully entrusted the vehicle to a person, who did not had a valid and effective driving licence to ride the Motor Cycle on the date of the accident. Hence, there is a breach and violation of the terms and conditions of the policy and as such, the present petition is liable to be dismissed as against its Insurance Company. It seeks protection under Section 147 and 149 of the Motor Vehicles Act.
f) The total compensation amount of Rupees 10,00,000/- claimed in the claim petition is excessive and exorbitant and the same is as against the principle of compensation of damages. This claim is also bad for non-compliance of Section 158(6) and 134(c) of the Motor Vehicles Act.
g) Without prejudice what is stated above in and in the alternative, the rider of the Motor Cycle bearing Registration 6 M.V.C.NO.3829/2014 (SCCH-7) No.KA-04-EP-6359 has contributed to the cause of the accident and the degree of negligence on the part of the rider of the Motor Cycle was on the higher side, as such, the liability if any, as far as it is concerned, should considerably be reduced and mitigated by taking in to consideration of the higher degree of the negligence on the part of the rider of Motor Cycle bearing Registration No.KA-04- EP-6359.
h) In the event of the Respondent No.2 failing to contest the present claim petition effectively, then, in such an event, its Insurance Company may please be permitted this Hon'ble Tribunal to contest the said claim petition on all grounds available to the Respondent No.2 under Section 170 of the Motor Vehicles Act.
i) It reserves the right to file additional written statement in the changed position of law, facts and circumstances of the case.
j) In case, if the Petitioner is entitled to any compensation, then, the interest on such compensation shall be 6% p.a., in view of the decision of the Hon'ble High Court of Karnataka. Hence, prayed to dismiss the claim petition with costs.
6. Based on the above said pleadings, I have framed the following;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent riding of the Motor 7 M.V.C.NO.3829/2014 (SCCH-7) Cycle bearing Registration No.KA-
04-HN-7161 by its rider and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation and damages? If so, how much and from whom?
3. What Order?
7. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined two witnesses as P.W.2 and P.W.3 by filing the affidavits as their examination-in- chief and has placed reliance upon Ex.P.1 to Ex.P.17. On the other hand, the Respondent No.1 has examined its Administrative Officer as R.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.1 to Ex.R.4.
8. Heard the arguments. The Learned Counsel appearing for the Respondent No.1 has filed the written arguments.
9. In support of the submission, the Learned Counsel appearing for the Respondent No.1, Sri. V. Shrihari Naidu has placed reliance upon the decisions reported in,
i) 2008 ACJ 1307 (Sardari and others V/s. Sushil Kumar and Others), wherein, it is observed that, Motor Vehicles Act, 1988 Sec.149(2) (a)
(ii) and 5 - Motor Insurance - Driving Licence - Liability of Insurance Company -
Tractor hit a tonga and tonga driver sustained fatal injuries - Tractor driver 8 M.V.C.NO.3829/2014 (SCCH-7) admitted that he had not driving licence to drive a tractor - Concurrent findings of High Court and the Tribunal that driver of Tractor had no licence and High Court held that claimants are entitled to compensation from driver and owner of the vehicle -
whether Insurance Company is rightly exempted from liability - Held, Yes. Owner of vehicle has a statutory obligation to see that driver of vehicle whom he authorised to drive holds a valid licence.
ii) ILR 2009 KAR 3562 Circuit Bench at Gulbarga (Veerappa and Another V/s. Siddappa and Another), wherein, it is observed that, (A) MOTOR VEHICLES ACT, 1988 -
Accident claim Dismissal of claim petition - Appealed against - "FRAUS ET JUS MUNQUAM COHABITANT" - Fraud and justice never Dwell together - An attempt on the part of the 1st Respondent /owner to collude with the claimants with the fond hope of saddling the Insurance Company to pay compensation - 1st Respondent / owner of the vehicle admitted the accident and had no objection for award of compensation -
HELD, Even though the owner of the vehicle unmistakable terms, has admitted the incident, that, admission has no value in the eye of law. He has admitted something about which he has no knowledge and which he has not seen. It is clear that, the said admission is made with the sole object of getting compensation to the claimants as it is the examination-in-chief which will pay, and not the owner. Though admission is the best piece of evidence, it cannot be accepted as gospel truth. The Court can insist on proof of facts, if the admission is no satisfactory. In the instant case, since the Court was not satisfied, it wanted the 9 M.V.C.NO.3829/2014 (SCCH-7) claimants to prove their case independently. The claimants have miserably failed to prove their case. ON FACTS, HELD, The accident took place on 26.06.2001. The injured died on 28.06.2001. No complaint is lodged by the father of the injured setting out the case now pleaded. According to him he went to lodge a complaint on 28.08.2001. They refused to receive it. Therefore, he lodged a private complaint before the jurisdictional Magistrate on 31.08.2001. The earlier FIR, charge sheet are all suppressed both by the Police and the claimant. The vehicle involved in the accident was never seized by the Police. The truth came out during investigation by the insurer. Under these circumstances, the Tribunal was justified in dismissing the claim petition.
(B)MOTOR VEHICLES ACT, 1988 -
Accident - Claim petition - Dismissal of -
Fraud played on the Courts by the claimants with the connivance of the 1st Respondent - Liability of the Insurance Company to pay the compensation if the fraud is prove - HELD, Insurance Company not liable to indemnify the owner of the vehicle who has played fraud and not liable to pay any compensation to the claimants who are also party to the fraud. - FURTHER HELD, It is a clear case of fraud played on the Court by the claimants with the connivance of 1st Respondent. Once the insured plays fraud, admits liability with the sole object of foisting liability on the Insurance Company, though in fact he knew that, it is not true, liability of the Insurance Company to indemnify such insured ceases.
Therefore, there is no obligation on the part of the Insurance Company to indemnify the insured even though he has taken the policy and the statue mandates that, the Insurance Company has to indemnify the insured and pay compensation to third 10 M.V.C.NO.3829/2014 (SCCH-7) party. When fraud is established from the material on record, such statutory obligation stands discharged. There is no third party liability on the part of the Insurance Company to pay compensation to the claimants. This amount is awarded in order to see that, in future such false defences are not filed before Court, judicial process is not abused. Therefore, it is only the 1st Respondent / Owner who is liable to pay the amount.
Dismissal of claim petition against the Insurance Company is affirmed.
10. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is entitled
for compensation of Rupees
4,05,525/- with interest at
the rate of 8% p.a.
(excluding future medical
expenses of Rupees
20,000/-) from the date of
the petition till the date of
payment, from the
Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, the accident occurred, when he was riding the Motor Cycle bearing Registration No.KA-
11 M.V.C.NO.3829/2014(SCCH-7) 04-EP-6359 slowly and cautiously, observing all traffic norms, on the road from Western to Eastern direction, at that time, another Motor Cycle bearing Registration No.KA-04-HN-7161, which was coming at a very high speed, rash and negligently, dashed against his Motor Cycle and due to the said impact, he fell down and sustained grievous injuries. He has further stated that, immediately after the accident, he was shifted to Kethams Hospital, Bangalore, wherein, first-aid treatment was given and further shifted to Bangalore Baptist Hospital, Bangalore, wherein, he was treated as an inpatient from 20.07.2014 to 25.07.2014 and in the said Hospital, X-rays were taken and was diagnosed that, he had sustained grievous injuries, like, right condylar fracture and parasymphysis fracture mandible, distal radius intra articular undisplaced fracture and injuries to other parts of the body. He has further stated that, after discharge, he was again admitted to the said Hospital on 01.08.2014 with the complaints of swelling and pain over the left side of the face and took treatment and discharged on 05.08.2014. He has further stated that, the cause of the accident is the reckless riding by the rider of the Motor Cycle bearing Registration No.KA-04-HN-7161 and a case has been registered as against the rider of the said vehicle and he was charge sheeted.
12. It is pertinent to note here that, when the accident was taken place on 20.07.2014 at 6.30 a.m., the Petitioner himself had lodged a complaint in respect of the said road traffic accident on 14.08.2014 at 10.30 a.m., i.e., 25 days delay in lodging the said complaint. Further, the P.W.1 in his cross-examination has stated that, he has not informed to the Doctor of the Ketham's Hospital about how and from which vehicle, the accident was taken place 12 M.V.C.NO.3829/2014 (SCCH-7) and after discharge from the Hospital, he has lodged a complaint. He has further stated that, he has not informed to the Baptist Hospital Authority about the number of the vehicle, which caused the accident to him and he does not know that, before given a complaint, one complaint is lodged as against him and the said complaint lodged by Jagadish as against him by alleging that, at the time of accident, he had not wear helmet and due to high speed, rash and negligent manner of driving of his Motor Cycle itself, the said accident was taken place. He has further stated that, the contents of Ex.P.3 Spot Hand Sketch are true and correct and as per Ex.P.5 MVI Report, the front portions of both the vehicles are damaged. Further, the Respondent No.1 has examined its Administrative Officer-Legal as R.W.1, who has stated in his examination-in-chief that, the complainant was an afterthought, has given re-statement before the Police 24 days after the alleged accident stating that, the rider of the Motor Cycle sustained simple injuries and pillion rider Sri. Siddesh sustained grievous injuries, however, there is no mention of pillion rider in the complaint as well as in FIR and it is important to note that, the person, who is said to be rider of the Motor Cycle not at all, sustained any injuries. He has further stated that, the jurisdictional Police have filed a false Charge Sheet as against one Jagadish instead of filing the Charge Sheet as against Sri. Siddesh, who was the rider on the date of the accident, hence, it is clear that, one Siddesh was riding the Motor Cycle bearing Registration No.KA-04-HN-7161 without holding the valid driving licence on the date of the accident. The Respondent No.1 has produced Ex.R.1 Further Statement relating to T. K. Lakshman, Ex.R.2 Complaint and Ex.R.3 Wound Certificate through R.W.1.
13 M.V.C.NO.3829/2014(SCCH-7)
13. But, based on the grounds of 24 days delay in lodging the complaint by the Petitioner himself in respect of the said road traffic accident, the evidence elicited from the mouth of P.W.1 by the Respondents during the course of cross-examination, the oral version of R.W.1 and the contents of Ex.R.1 to Ex.R.3, it cannot be thrown away the above said oral version of P.W.1, which has been stated by him in the examination-in-chief and it cannot be said that, a false complaint is lodged in respect of the said road traffic accident as against the rider of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 and the entire negligence is on the part of the Petitioner in riding the Motor Cycle bearing Registration No.KA-04-EP-6359 and there was no negligence on the part of the rider of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 in the commission of the said road traffic accident, as, to corroborate his oral version as well as his case, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanama, Ex.P.5 MVI Report, Ex.P.6 Wound Certificate, Ex.P.7 Charge Sheet, Ex.P.8 Discharge Summaries 2 in numbers, Ex.P.10 Photographs 3 in numbers, Ex.P.11 CD relating to Ex.P.10 Photographs, Ex.P.13 CT Scans 3 in numbers and Ex.P.14 X-ray Films 3 in numbers and also produced Ex.P.15 MLC Extract and Ex.P.16 Case Sheet though P.W.2, who is a Medical Officer at Bangalore Baptist Hospital, wherein, he took treatment to the said accidental injuries, which clearly disclosed that, the entire negligence is on the part of the rider of the offending Motor Cycle bearing Registration No.KA-04-HN-7161, namely, Jagadish S/o. Kumaraswamy, who was riding the offending Motor Cycle at the time of accident and there was no negligence on the part of the Petitioner in riding his Motor Cycle bearing Registration No.KA-04- 14 M.V.C.NO.3829/2014 (SCCH-7) EP-6359 and in the said road traffic accident, the Petitioner had sustained contusion over the face, chin fracture mandible right and bilateral condyle parasymphsis, which is grievous in nature and on 20.07.2014 at 6.30 a.m., itself, the Petitioner was admitted in Bangalore Baptist Hospital and by admitting as an inpatient from 20.07.2014 to 25.07.2014, i.e., for 6 days and again from 01.08.2014 to 05.08.2014, i.e., for 5 days, totally for 11 days, he took treatment to the said accidental injuries, which is clear from the following discussion. Furthermore, in Ex.R.3 Wound Certificate, though the name of Siddesh. K. M. is shown and he had sustained the injuries in the alleged history of road traffic accident on 20.07.2014 at 6.00 a.m., and he was admitted in Ketham's Hospital on 20.07.2014 at 4.00 p.m., he was not a rider of the offending Motor Cycle, but, Jagadish S/o. Kumaraswamy was a rider of the offending Motor Cycle, which is clear from the contents of Ex.P.7 Charge Sheet. Further, if the defence taken by the Respondent No.1 is true and correct, the said Siddesh. K. M. or Jagadish could have definitely lodged a complaint as against the Petitioner in respect of the said road traffic accident immediately after the accident before the jurisdictional Police. But, no such complaint is lodged by them. No doubt, the Petitioner has also not produced the driving licence to show that, at the time of accident, he was having a valid and effective driving licence to ride his Motor Cycle. But, it no way affect to consider the case of the Petitioner as well as help to the Respondent No.1 to consider its defence, as, it is clear from the contents of material evidence, both oral and documentary, which has been produced by the Petitioner that, the entire negligence is on the part of the rider of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 and there was no negligence on the part of the Petitioner in riding 15 M.V.C.NO.3829/2014 (SCCH-7) his Motor Cycle bearing Registration No.KA-04-EP-6359. Furthermore, in Ex.P.15 MLC Extract issued by Bangalore Baptist Hospital, Bangalore, it is clearly mentioned that, on 20.07.2014 at 7.25 a.m., the Petitioner was brought to the said Hospital through his cousin Subramani with alleged prevented history of road traffic accident B/w two wheeler near Dodda Bommasandra and on examination, it is found that, deep lacerated wound over the chin mandible fracture, multiple abrasion over the right hand, left wrist swelling and left shoulder tenderness is present. From this, it appears that, immediately after admission of the Petitioner in the said Hospital, the Hospital Authority has registered a MLC. Further, the P.W.1 in his cross-examination has clearly stated that, he was alone proceeding on the Motor Cycle on that day and there were 2 persons proceeding on the offending Motor Cycle and they were also fell down after the accident and after the accident, he was shifted to Ketham's Hospital and he had taken first-aid treatment in the said Hospital for 10 minutes and after discharge from the Hospital, he has lodged a complaint and he underwent surgery in Baptist Hospital. He has further stated that, he was not in a position to lodge a complaint as so many days he was in the Hospital and along with him, his mother was in the Hospital and due to which, he had not lodged a complaint immediately after the accident. He has further clearly stated that, Dr. Deepika had operated him. Furthermore, the R.W.1 in his cross-examination has clearly stated that, nowhere in Ex.R.1 to Ex.R.3, it is mentioned that, Siddesh was riding the said Motor Cycle at the time of accident and as per the Charge Sheet, Jagadish was riding the said Motor Cycle and they have not challenged the Charge Sheet before the Hon'ble Appellate Court. He has further stated that, it is only mentioned as RTA in Ex.R.3 Wound Certificate and 16 M.V.C.NO.3829/2014 (SCCH-7) since, Siddesh was not riding the offending Motor Cycle at the time of accident, his name not mentioned in Ex.R.3 Wound Certificate.
14. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the Petitioner himself has lodged Ex.P.2 Complaint before the Hebbal Traffic Police as against the rider of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 by alleging that, on 20.07.2014 at about 6.30 A.M., when he was proceeding on his Motor Cycle bearing Registration No.KA04-EP- 6359 in front of Krishna Green Apartment, Doddabommasandra Main Road on Krishna Temple Road, another Motor Cycle bearing Registration No.KA-04-HN-7161 came on opposite direction with very high speed, rash and negligent manner by its rider and dashed to his Motor Cycle and due to the said impact, he fell down along with his Motor Cycle and he had sustained grievous injuries on his face, left hand and other parts of the body and his mother had shifted him to nearby Kethams Hospital, wherein, first-aid treatment was taken and thereafter, for further treatment, he was shifted to Bangalore Baptist Hospital and he had taken treatment in the said Hospital as an inpatient and the said accident was taken place due to negligence on the part of the rider of the offending Motor Cycle bearing Registration No.KA-04-HN-7161, who fled away from the accidental spot and as such, he prayed to take necessary legal action as against the rider of the offending Motor Cycle and based on the said Ex.P.2 Complaint, the said Police have registered a criminal case as against the rider of the offending Motor Cycle for the offences punishable under Section 279 and 337 of IPC R/w Section 134 (A & B) of M.V. Act under Crime No.90/2014. It is clearly explained by the Petitioner in 17 M.V.C.NO.3829/2014 (SCCH-7) Ex.P.2 Complaint itself that, immediately after the accident, he was admitted in the Hospital to take treatment to the accidental injuries as he had sustained injuries on his face, he was not in a position to speak and the operation was conducted to his left hand and face and except his mother, nobody was looking after him in the Hospital during the course of treatment and as such, after discharge from the Hospital, he lodged a complaint. From this, it appears that, 25 days delay is clearly explained by the Petitioner in Ex.P.2 Complaint itself.
15. The contents of Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanama and Ex.P.5 MVI Report further clearly disclosed that, due to very high speed, rash and negligent manner of riding of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 by its rider itself, the said road traffic accident was taken place, which dashed to the Motor Cycle bearing Registration No.KA-04- EP-6359, wherein, the Petitioner was proceeding, on opposite direction and due to the said impact, the Petitioner fell down and had sustained severe grievous injuries on his face and he was not in a position to speak and the said offending Motor Cycle bearing Registration No.KA-04-HN-7161 as well as its rider are very much involved in the said road traffic accident. The damages caused to both the Motor Cycles are clearly mentioned in Ex.P.5 MVI Report, which clearly disclosed about the terrific impact of the said accident. If the rider of the offending Motor Cycle could have taken a little care while riding it at the time of accident, he could have avoided the said road traffic accident, which is clear from the contents of Ex.P.4 Spot Panchanama and Ex.P.3 Spot Hand Sketch. It is also clearly mentioned in Ex.P.5 MVI Report that, the 18 M.V.C.NO.3829/2014 (SCCH-7) said accident was not occurred due to any mechanical defects of the said Motor Cycles.
16. The contents of Ex.P.6 Wound Certificate clearly disclosed that, on 20.07.2014 at 7.25 a.m., itself, the Petitioner was admitted in Bangalore Baptist Hospital to take treatment to the said accidental injuries, which caused to him in a RTA on 20.07.2014 at 6.30 a.m., and on examination, it is found that, he had sustained contusion over the face chin fracture mandible right and bilateral condyle parasymphsis, which is grievous in nature.
17. The contents of Ex.P.8 Discharge Summaries, Ex.P.10 Photographs, Ex.P.11 CD relating to Ex.P.10 Photographs, Ex.P.13 CT Scan, Ex.P.14 X-ray Films and Ex.P.16 Case Sheet further clearly disclosed that, with alleged history of road traffic accident while riding a 2 wheeler at 7.25 a.m., on 20.07.2014, the Petitioner had sustained injuries and during the course of treatment, it is diagnosed right condylar fracture and parasymphysis fracture mandible and distal radius intra articular undisplaced fracture and by admitting as an inpatient from 20.07.2014 to 25.07.2014, i.e., for 6 days, he took treatment to the said accidental injuries at Bangalore Baptist Hospital and again, the Petitioner was admitted in the said Hospital on 01.08.2014 and at that time, it was diagnosed fracture mandible right parasymphysis and B/L condyle and by admitting as an inpatient till 05.08.2014, i.e., for 5 days, he took treatment to the said accidental injuries. The P.W.3, who is a Dental Surgeon has clearly stated in his examination-in-chief that, he has gone though the Xerox copy of the Discharge Summary and Wound Certificate 19 M.V.C.NO.3829/2014 (SCCH-7) issued by Bangalore Baptist Hospital, Bangalore and as per the records, the Petitioner had sustained fracture of right condyle of mandible and parasymphysis fracture of mandible. From the said medical evidence, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained grievous injury.
18. The contents of Ex.P.7 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to high speed, rash and negligent manner of riding of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 by its rider, the road traffic accident was taken place on 20.07.2014 at about 6.30 A.M. in front of Krishna Green Apartment, Doddabommasandra Main Road, Krishna Temple Road, which dashed to the Motor Cycle bearing Registration No.KA-04-EP- 6359, wherein, the Petitioner was proceeding as a rider and due to the said impact, the Petitioner had sustained grievous injury and at the time of accident, K. M. Siddesh was a pillion rider of the said Motor Cycle, who had also sustained grievous injuries and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the rider of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 for the offences punishable under Section 279 and 338 of IPC R/w Section 134 (A & B) of IMV Act. There is no allegation leveled by the Investigation Officer as against the Petitioner in Ex.P.7 Charge Sheet about his negligence in the commission of the said road traffic accident.
19. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the rider of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 and there was no negligence on 20 M.V.C.NO.3829/2014 (SCCH-7) the part of the Petitioner in the commission of the said road traffic accident and the offending Motor Cycle bearing Registration No.KA-04-HN-7161 as well as its rider are very much involved in the said road traffic accident, wherein, the Petitioner had sustained grievous injury. Accordingly, I answered Issue No.1 in the Affirmative.
20. ISSUE NO.2 :- The Petitioner has not produced any authenticated documents to consider his actual age at the time of accident. But, all the above said Police and medical documents clearly disclosed that, at the time of accident, the Petitioner was 32 years old. Hence, the age of the Petitioner is considered as 32 years at the time of accident.
21. The P.W.1 has stated that, prior to the accident, he was working as a Priest at Prasanna Mahaganapathi Temple, Bangalore and was earning a sum of Rupees 10,000/- per month. The Petitioner has produced Ex.P.12 Letter dated 27.04.2015 issued by the President of Sri Prasanna Mahaganapathi Sannidi Trust (R), wherein, it is mentioned that, the Petitioner was working as a Priest/Archak/Purohith for performing pooja and other related works at Sri Prasanna Mahaganapathi Temple Ramakrishnanagara, 4th Block, Nandini Layout, Bangalore and he was earning a sum of Rupees 10,000/- as salary emoluments. The P.W.1 in his cross-examination has also clearly stated that, except Ex.P.12 Letter, he has no other documents to show that, at the time of accident, he has received salary of Rupees 10,000/- per month. No doubt, the Petitioner has not examined the author of Ex.P.12. Except Ex.P.12 Letter, the Petitioner has not produced any other relevant documents to consider his avocation and 21 M.V.C.NO.3829/2014 (SCCH-7) income at the time of accident. But, based on the same, it cannot be thrown away the said oral version of P.W.1 as well as the contents of Ex.P.12 Letter for consideration of his avocation and income, as, it is clear from the said oral version of P.W.1 and contents of Ex.P.12 Letter that, at the time of accident, the Petitioner was working as a Priest at Sri Prasanna Mahaganapathi Temple, Bangalore and as such, he knows the required pooja activities by studying it and now a days, even a coolie can get minimum wages of Rupees 8,000/- p.m. Hence, based on the said material acceptable evidence, it can be safely held that, at the time of accident, the Petitioner was working as a Priest and was earning Rupees 10,000/- p.m., which is believable and acceptable one. Hence, the income of the Petitioner is considered as Rupees 10,000/- p.m., at the time of accident.
22. The P.W.1 has stated that, he was operated with ORIF done under G.A B/E cast applied to left forearm and lacerations sutured in the ER and for fracture B/E slab was applied, for mandibular fracture ORIF and IMF was done with arch bar, sublabial incision given, fracture fragments skeletonised, reductiondone and fixed with two 6 holed plates with 8 mm screws, IMF was done and elastics applied and discharged. He has further stated that, after discharge, he was again admitted to the said Hospital on 01.08.2014 with the complaints of swelling and pain over the left side of the face and in the said Hospital, Re- exploration of right para-symphysis fracture, right retromandibular approach - ORIF done under GA and RT. Retro mandibular incision given, dissection done to expose the right condylar fracture and fracture fragments reduced, occlusion achieved, IMF done and fracture fragment fixed using 2 mm four 22 M.V.C.NO.3829/2014 (SCCH-7) hole plate with gap using four 8 mm screws and parasymphysis fracture fixed using 2 mm 6 hole plates using eight 8 mm screws and closure done in layers in rt. retro mandibular region using 3-0 vicryl and 4-0 vicryl and intra oral closure done using 4-0 vicryl and post operatively elastics placed on left side and discharged on 05.08.2014. He has further stated that, after discharge, he took follow-up treatment on OPD basis in the said Hospital weekly once for a period of 2 months and 15 days once for a period of 2 months and even now, he is taking treatment, whenever he gets pain in his injured parts.
23. Based on the contents of Ex.P.6 Wound Certificate, Ex.P.8 Discharge Summaries, Ex.P.10 Photographs, Ex.P.11 CD relating to Ex.P.10 Photographs, Ex.P.13 CT Scan, Ex.P.14 X-ray Films and Ex.P.16 Case Sheet, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained contusion over the face chin fracture mandible right and bilateral condyle parasymphsis and during the course of treatment, for the first time at Bangalore Baptist Hospital, it was diagnosed that, right condylar fracture and parasymphysis fracture mandible and distal radius intra articular undisplaced fracture and during the course of treatment, ORIF done under G.A. B/E cast applied his forearm and lacerations sutured in the E.R. Ortho consent sought hand was diagnosed with fracture distal radius and B/E slab applied and scaphiod fracture suspected on check X-ray and was advised scaphoid series X-ray after 6 weeks and dental consult sought mandibular fracture and was advised ORIF and IMF and IMF done with arch bar and sublabial incision given and fracture fragments skeletonised, reduction done and fixed with two 6 holed with 8 23 M.V.C.NO.3829/2014 (SCCH-7) mm screws and negligence immediate post op complications and IMF done and elastics applied and by admitting as an inpatient from 20.07.2014 to 25.07.2014, i.e., for 6 days, he took treatment to the said accidental injuries and at the time of discharge, the treated Doctors have advised the Petitioner to take regular follow- up treatment and again on 01.08.2014, the Petitioner was admitted in the said Hospital and during the course of treatment, it was diagnosed fracture mandible right parasymphysis and B/L condyle and during the course of treatment re-exploration of right para-symphysis fracture, right retromandibular approach - ORIF done under GA on 02.08.2014 and right retro mandibular incision given, dissection done to expose the right condylar fracture and fracture fragments reduced, occlusion achieved, IMF done and fracture fragment fixed using 2 cmm 6 hole plates using eight 8 mm screws and closure done in layers in right retro madibular region using 3-0 vicryl and 4-0 vecryl and intra oral closure done using 4-0 vicryl and post operatively elastics placed on its side and by admitting as an inpatient from 01.08.2014 to 05.087.2014, i.e., for 5 days, he took treatment to the said accidental injuries and at the time of discharge, the Petitioner has taken regular follow-up treatment as per the advise of the treated Doctors. From the said medical evidence, it clearly goes to show that, in the said road traffic accident, the Petitioner had sustained grievous injury and by admitting as an inpatient totally for 11 days, he took treatment to the said accidental injuries at Bangalore Baptist Hospital and during the course of treatment, implants are inserted to the fracture site of the Petitioner and the treated Doctors have advised the Petitioner to take regular follow-up treatment to the said accidental injuries. The nature of injury sustained by the Petitioner in the said road traffic accident, the line of treatment 24 M.V.C.NO.3829/2014 (SCCH-7) given to the said accidental injuries and the nature of follow-up treatment advised by the treated Doctor to the Petitioner after his discharge from the Hospital for 2 times, are clear from the above said material medical evidence.
24. The P.W.1 has stated that, even now, he is taking treatment whenever he gets pain in his injured parts and after the accident, due to the grievous injuries sustained by him, he was not able to attend his work till today and hence, he sustained loss of income from this accident. He has further stated that, prior to the accident, he was hale and healthy, but, after the accident, due to the grievous injuries sustained by him, he cannot lift heavy weights, he cannot do his priest work as he gets pain, often he gets pain and swelling in the injured part and he cannot do his day to day activities and now, he is suffering from permanent disability and he is not active as he was prior to the accident.
25. The P.W.3, who is Dental Surgeon has stated in his examination-in-chief that, on his recent clinical and radiological examination, he found the disability of the Petitioner, i.e., oral skeletal disability resultant, condylar fracture of mandible (right) of 20% and fracture of parasymphasis of mandible of 10% and total percentage is 30%. He has further stated that, the total resultant disability of Petitioner is 30% on the basis of book written by Dr. Bagi titled Medico Legal Jurisprudence and Forensic Odontology and Forensicology. He has further stated that, the Petitioner has been operated for the mandibular fracture and plates have been placed during surgery and the fractures have healed. He has further stated that, The function of the jaws and the teeth is esthetics (appearance) and chewing food 25 M.V.C.NO.3829/2014 (SCCH-7) (Mastication) and with the above mentioned treatment, the Petitioner's function of esthetics will be fulfilled 100%, that is appearance will become normal, however, his function of chewing food will be reduced to 50% and the Petitioner will not be able to bite hard food with his front teeth throughout his life and the Petitioner has a fracture of his mandible and the injuries are of permanent disabilities and he has to be followed up throughout his life once in six months. The P.W.3 has produced Ex.P.17 X-ray Film.
26. But, based on the said oral version of P.W.1 and P.W.3, coupled with the contents of the above said medical documents, it cannot be believed and accept that, the function of chewing food will be reduced to 50% due to the said accidental injuries, the Petitioner will not be able to bite hard food with his front teeth throughout his life and he had sustained such extent of disability, as, admittedly, the P.W.3 is not a personally treated Doctor and the same has been clearly admitted by the P.W.3 in his cross- examination. Further, the P.W.1 in his cross-examination has clearly stated that, except mandibular difficulties, he has no other difficulties and now, he is not working in the said Temple. He has further stated that, if any person called to perform Pooja, he will attend and if his health is permitted, he has been attending the marriage functions and performance of Pooja and now, he is earning Rupees 4,000/- per month. From this, it appears that, the said accidental injuries no way affected to his avocation to the Petitioner to continue the same avocation even after the accident, but, now also he is doing the same avocation by earning. Further, the P.W.3 in his examination-in-chief itself has clearly stated that, the fractures have healed. He has further stated in his cross-
26 M.V.C.NO.3829/2014(SCCH-7) examination that, the Petitioner having plates in his mouth and no teeth was removed from the mouth of Petitioner and no problem in respect of teeth of the Petitioner. He has further stated that, condyle of mandible is an undisplaced fracture, which is in the same position and it will united from 8 - 10 weeks and now, the said fracture is healed up. He has further stated that, the alignment of jaw of the Petitioner is normal and since, the Petitioner is having implants, he is having difficulty to chew and if the implants are removed and physiotherapy treatment will be taken, the restriction of chewing will gradually reduced. He has voluntarily stated that, 70% disability will be reduced. He has further clearly stated that, the treated Doctor has not mentioned in Discharge Summary about difficulty in biting the hard foods from front teeth. Therefore, the said extent of disability as stated by the P.W.3, which is suffering by the Petitioner due to the accidental injuries cannot be believed and accept.
27. However, in the said road traffic accident, the Petitioner had sustained contusion over the face chin fracture mandible right and bilateral condyle parasymphsis and by admitting as an inpatient totally for 11 days, he took treatment to the said accidental injuries by admitting as an inpatient for 2 times at Bangalore Baptist Hospital and still the Petitioner is having implants to the fracture site and by profession, the Petitioner was a Priest and at the time of accident, the Petitioner was 32 years old. By considering all these materials, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability to some extent. Hence, it is considered that, due to the said accidental injuries, the Petitioner is suffering from permanent 27 M.V.C.NO.3829/2014 (SCCH-7) physical and functional disability of 10% to the whole body, which is believable and acceptable one. Furthermore, the Petitioner had sustained such nature of injuries in the said road traffic accident, which caused due to the negligence on the part of the rider of the offending Motor Cycle bearing Registration No.KA-04-HN-7161. Hence, the Petitioner is entitled for the compensation under the following heads.
28. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 10%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 10%.
29. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 32 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 16.
30. As the Petitioner is suffering from permanent physical and functional disability of 10% to the whole body. The notional income of the Petitioner is already considered as Rupees 10,000/- per month. Therefore, the loss arising out of the said 10% disability for monthly income of Rupees 10,000/- by applying multiplier 16 comes to Rupees 1,92,000/-, i.e., (Rs.10,000/- x 12 x 16 x 10%).
31. As per Ex.P.6 Wound Certificate and evidence of P.W.1 and P.W.3, the Petitioner had sustained grievous injury. The 28 M.V.C.NO.3829/2014 (SCCH-7) Petitioner was in the Hospital as an inpatient from 20.07.2014 to 25.07.2014, i.e., for 6 days and from 01.08.2014 to 05.08.2014, i.e., for 5 days, totally for 11 days. Due to the said injury, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 30,000/- towards pain and suffering.
32. As it is already observed that, the age of the Petitioner was 32 years. He has to lead remaining his entire life with 10% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
33. The Petitioner had sustained grievous injury and he was in the Hospital as an inpatient for 11 days and he could not do any work at least for 3 months and thereby, he deprived the income. Therefore, at the rate of Rupees 10,000/- per month, a sum of Rupees 30,000/- is awarded towards loss of income during the laid up period.
34. The P.W.1 has stated that, he engaged Auto by spending Rupees 300/- per trip for follow-up treatment and he has spent Rupees 2,50,000/- towards his medical, nourishment, conveyance and other incidental expenses. In this regard, the Petitioner has only produced Ex.P.9 Medical Bills 48 in numbers, which is amounting of Rupees 1,04,524-78. No doubt, the Petitioner has not produced the medical prescriptions. In this regard, the P.W.1 has stated in his cross-examination that, he has 29 M.V.C.NO.3829/2014 (SCCH-7) not produced the medical prescriptions. But, the non-production of the medical prescriptions relating to the Ex.P.9 Medical Bills no way affect to consider the amount covered under Ex.P.9 Medical Bills, as, they are the original bills. Further, the Petitioner has clearly stated in his cross-examination that, Baptist Hospital Authority have given concession in medical expenses relating to the 2nd operation and they have received Rupees 25,000/- from him and remaining amount was waived by them for the 2nd operation. The said evidence of P.W.1 clearly disclosed that, the Petitioner is fare in respect of the expenses incurred by him towards medical treatment. The Petitioner has taken treatment at Bangalore Baptist Hospital, wherein, he was taken treatment as an inpatient from 20.07.2014 to 25.07.2014, i.e., for 6 days and from 01.08.2014 to 05.08.2014, i.e., for 5 days, totally for 11 days. Considering the nature of the injury and line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 1,04,524-78, which is rounded off Rupees 1,04,525/- to the Petitioner.
35. The P.W.1 has stated that, he has to incur future medical expenses. He has further stated in his cross-examination that, the plates are not at removed from mandibular. The P.W.3 has stated that, the Petitioner needs to undergo one more surgery to remove the plates, which are placed during surgery and the approximate cost of dental treatment to the Petitioner in his clinic is Rupees 40,000/-. It is clearly mentioned in Ex.P.8 Discharge Summary about ORIF done under G.A. B/E cast applied it forearm and lacerations sutured in the E.R. Ortho consent sought 30 M.V.C.NO.3829/2014 (SCCH-7) hand was diagnosed with fracture distal radius and B/E slab applied and scaphiod fracture suspected on check X-ray and was advised scaphoid series X-ray after 6 weeks and dental consult sought mandibular fracture and was advised ORIF and IMF and IMF done with arch bar and sublabial incision given and fracture fragments skeletonised, reductiondone and fixed with two 6 holed with 8 mm screws and negligence oimmediate post op complications and IMF done and elastics applied and ORIF done under GA on 02.08.2014 and right retro mandibular incision given, dissection done to expose the right condylar fracture and fracture fragments reduced, occlusion achieved, IMF done and fracture fragment fixed using 2 cmm 6 hole plates using eight 8 mm screws and closure done in layers in right retro madibular region using 3-0 vicryl and 4-0 vecryl and intra oral closure done using 4-0 vicryl and post operatively elastics placed on it side, which disclosed about the insertion of implants in situ. The said implants have to be removed and therefore, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.3 produced the estimation for removal of implants. However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 20,000/- to the Petitioner.
36. As the Petitioner was taken treatment as an inpatient for 11 days, it is necessary to award a sum of Rupees 3,000/- towards conveyance charges, Rupees 3,000/- towards attendant charges and Rupees 3,000/- towards food, nourishment and diet charges etc.,
37. In this way, the Petitioner is entitled for the following amount of compensation:-
31 M.V.C.NO.3829/2014(SCCH-7) Sl. No. Compensation heads Compensation amount Loss of future income
1. arising out of 10% Rs. 1,92,00-00 Disability
2. Pain and sufferings Rs. 30,000-00
3. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
4. Rs. 30,000-00 up period
5. Actual medical expenses Rs. 1,04,525-00
6. Future medical expenses Rs. 20,000-00
7. Conveyance Rs. 3,000-00
8. Attendant Charges Rs. 3,000-00 Food, Nourishment &
9. Rs. 3,000-00 Diet charges TOTAL Rs. 4,05,525-00
38. In all, the Petitioner is entitled for total compensation of Rupees 4,05,525/- along with interest at the rate of 8% per annum on the above said sum (excluding future medical expenses of Rupees 20,000/-) from the date of petition till payment.
39. While answering Issue No.1, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the rider of the offending Motor Cycle bearing Registration No.KA- 04-HN-7161 and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and the offending Motor Cycle bearing Registration No.KA-04-HN-7161 as well as its rider are very much involved in the said road traffic accident, wherein, the Petitioner had sustained grievous injury. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.1 is an insurer of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 and its Policy Number 60390131146265001143 and date of 32 M.V.C.NO.3829/2014 (SCCH-7) validity is from 09.07.2014 to 08.07.2015. The Respondent No.1 in its written statement has clearly admitted that, they have insured a Policy of Insurance in respect of the Motor Cycle bearing Registration No.KA-04-HN-7161 in question in favour of the Respondent No.2 insured and the same was valid for the period from 09.07.2014 to 08.07.2015. The R.W.1 has further clearly stated that, the Respondent Insurance Company has issued a policy of Insurance in respect of the Motor Cycle bearing Registration No.KA-04-HN-7161 in favour of the Respondent No.2 insured and the same was valid for the period from 09.07.2014 to 08.07.2015. The Respondent No.1 has also produced Ex.R.4 True copy of Insurance Policy relating to the offending Motor Cycle. From this, it is made crystal clear that, at the time of accident, the Respondent No.1 was an Insurer and the Respondent No.2 was a R. C. Owner of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 and its Insurance Policy was valid, which covers the date of accident.
40. The R.W.1 has stated in his examination-in-chief that, one Siddesh was riding the Motor Cycle bearing Registration No.KA-04-HN-7161 without holding the valid driving licence on the date of the accident and as such, the Respondent No.2 is guilty of breach of the terms and conditions of the policy and as a result of the same, their Insurance Company is not liable to indemnify the Respondent No.2 Insured and accordingly, the petition is liable to be dismissed as against their Insurance Company.
41. But, based on the said oral version of R.W.1, it cannot be said that, one Siddesh was riding the offending Motor Cycle 33 M.V.C.NO.3829/2014 (SCCH-7) bearing Registration No.KA-04-HN-7161 without holding a valid driving licence as on the date of the accident and as such, the Respondent No.2, who is the R.C. Owner of the offending Motor Cycle has violated the terms and conditions of the admitted Ex.R.4 Insurance Policy and hence, the Respondent No.1 Insurance Company is not liable to indemnify the Respondent No.1, as, there is no allegation leveled by the Investigation Officer as against the rider of the offending Motor Cycle in Ex.P.7 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to ride such class of offending Motor Cycle and Ex.P.7 Charge Sheet is filed as against Jagadeesh and not Siddesh. Further, the R.W.1 in his cross-examination has clearly stated that, nowhere in Ex.R.1 to Ex.R.3, it is mentioned that, Siddesh was riding the said Motor Cycle at the time of accident as per Charge Sheet, Jagadeesh was riding the said Motor Cycle and since the said Siddesh was not riding the offending Motor Cycle at the time of accident, his name not mentioned in Ex.R.3 Wound Certificate. Hence, the said defence taken by the Respondent No.1 in respect of the driving licence of the rider of the offending Motor Cycle cannot be believed and accept as not proved.
42. While discussing above, this Tribunal has already observed and come to the conclusion that, at the time of accident, the Respondent No.1 was an Insurer and the Respondent No.2 was a R. C. Owner of the offending Motor Cycle bearing Registration No.KA-04-HN-7161 and its Insurance Policy was valid, which covers the date of accident. The violation of the terms and conditions of the admitted Insurance Policy by the Respondent No.2 is not proved by the Respondent No.1. Under such circumstances, the Respondent No.1 being an Insurer and 34 M.V.C.NO.3829/2014 (SCCH-7) the Respondent No.2 being the R.C. Owner of the offending Motor Cycle bearing Registration No.KA-04-HN-7161, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since the Respondent No.1 is an insurer, it shall indemnify the Respondent No.2. In view of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.1 are not applicable to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
43. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 4,05,525/-
with interest at the rate of 8% p.a. (excluding future medical expenses of Rupees 20,000/-) from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
35 M.V.C.NO.3829/2014(SCCH-7) In the event of deposit of compensation and interest, 75% shall be released in the name of the Petitioner through account payee cheque, on proper identification.
Remaining 25% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 10th day of June, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. T. K. Lakshman
P.W.2 : Sri. R. Vimal Raj
P.W.3 : Dr. N. Chaitanya Babu
36 M.V.C.NO.3829/2014
(SCCH-7)
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Hand Sketch
Ex.P.4 : True copy of Spot Panchanama
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Wound Certificate
Ex.P.7 : True copy of Charge Sheet
Ex.P.8 : Discharge Summaries (2 in nos.)
Ex.P.9 : Medical Bills ((48 in nos.)
Ex.P.10 : Photographs (3 in nos.)
Ex.P.11 : CD relating to Ex.P.10 Photographs
Ex.P.12 : Letter dated 27.04.2015
Ex.P.13 : CT Scans (3 in nos.)
Ex.P.14 : X-ray Films (3 in nos.)
Ex.P.15 : True copy of MLC Extract
Ex.P.16 : Case Sheet
Ex.P.17 : X-ray
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Shiva Kumar. G.
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : True copy of Further
Statement relating to T. K. Lakshman
Ex.R.2 : True copy of Complaint
Ex.R.3 : Certified copy of Wound Certificate
Ex.R.4 : True copy of Insurance Policy
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.