Bangalore District Court
To Have Wrongful Gains By Way Of ... vs Is The Owner Of The Vehicle In Question. ... on 1 January, 2016
THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 1st day of January, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),LL.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.423/2015
C/w M.V.C.No.532/2015
Mr. Ramadas Naik, .....PETITIONER IN
S/o Venkatesh Naik, M.V.C.No.423/2015
Aged 19 years,
R/at No.631, 4th Main,
3rd Cross,
Munisanjeevappa Layout,
Jaraganahalli,
J.P.Nagar,
Bangalore-560078.
(By Sri.B.S.Devaraju, Adv.,)
V/s
1. IFFCO TOKIO General Insurance .....RESPONDENTS IN
Co. Ltd., M.V.C.No.423/2015
KSCMF Building,
No.8, 3rd Floor,
Cunningham Road,
Bangalore-560052.
(Policy No.1-2R56T1MP 400
Policy No.87662599)
(Period of Insurance from 09.05.2014
SCCH-7 2 MVC.No.423/2015
C/w MVC No.532/2015
to 08.05.2014)
2. Mr.Devalingaiah
S/o Harake Gowda,
R/at Honganahalli Village,
Kodihalli Hobli,
Kanakapura Taluk,
Ramangara District.
(R-1 By Sri. B. Anjaneyalu, Adv.,)
(R-2 By Sri. H. D. Lingaraju, Adv.,)
Mr.Prakash, .....PETITIONER IN
S/o Venkatesh, M.V.C.No.532/2015
Aged 19 years,
R/at No.641, 5th Main,
4th Cross,
Munisanjeevappa Layout,
Jaraganahalli,
J.P.Nagar,
Bangalore-560078.
(By Sri.B.S.Devaraju, Adv.,)
V/s
1. IFFCO TOKIO General Insurance .....RESPONDENTS IN
Co. Ltd., M.V.C.No.532/2015
KSCMF Building,
No.8, 3rd Floor,
Cunningham Road,
Bangalore-560052.
(Policy No.1-2R56T1MP 400
Policy No.87662599)
(Period of Insurance from 09.05.2014
to 08.05.2014)
SCCH-7 3 MVC.No.423/2015
C/w MVC No.532/2015
2. Mr.Devalingaiah,
S/o Harake Gowda,
R/at Honganahalli Village,
Kodihalli Hobli,
Kanakapura Taluk,
Ramangara District.
(R-1 By Sri. B. Anjaneyalu, Adv.,)
(R-2 By Sri. H. D. Lingaraju, Adv.,)
COMMON JUDGMENT
As per the Order dated 09.07.2015 passed on Memo in
M.V.C.No.423/2015, M.V.C.No.532/2015 is clubbed with the
said M.V.C.No.423/2015 and the common evidence is recorded
in the said case. Hence, M.V.C.No.423/2015 and
M.V.C.No.532/2015 are pending for consideration and disposal
before this Tribunal by passing a common judgment.
2. The Petitioner in M.V.C.No.432/2015 has filed the
said petition as against the Respondents No.1 and 2 under
Section 166 of the Motor Vehicles Act, 1989, praying to award
compensation of Rupees 1,00,000/- with interest at the rate of
12% per annum from the date of the petition till realization.
3. The brief averments of the Petitioner's case in M.V.C.
No.423/2015 are as follows;
a) On 24.06.2014 at about 1.00 p.m., he was traveling
as a pillion rider in a Motor Cycle bearing Registration No.KA-09-
SCCH-7 4 MVC.No.423/2015
C/w MVC No.532/2015
K-6142 on Kanakapura-Kodihalli Main Road, Rampura Doddi
Village, Kodihalli Hobli, Kanakapura Taluk, along with his friend
Prakash. The rider of the Motor Cycle riding his vehicle slowly,
cautiously and observing all the traffic norms and when he came
near Rampura Doddi Village, at that time, all of a sudden, a
Tractor bearing Registration No.KA-42-T-3214 and Trailer
bearing Registration No.KA-42-T-3215 driven by its driver at a
very high speed and in a rash and negligent manner without
observing the traffic norms and took sudden right turn towards
Rampura Doddi without giving any hand signal or indicator and
came on wrong land and lost the control over his vehicle and
dashed against him.
b) Immediately, he was shifted to the Government
Hospital, Kanakapura for first-aid and then, he was shifted to the
Sanjay Gandhi Hospital for better treatment. Again, he was
shifted to Victoria Hospital, Bangalore, wherein, he was admitted
as an inpatient.
c) Still he is bed ridden and under treatment and so far
has spent Rupees 10,000/- towards the medical, conveyance and
nourishment expenses.
d) Before to the said accident, he was working as an
Electrician under several Contractors and was earning Rupees
9,000/- per month. After the said accident, he is unable to lead a
normal life as earlier and not able to do his job as before and
suffering from huge loss of income.
SCCH-7 5 MVC.No.423/2015
C/w MVC No.532/2015
e) The cause of accident is due to the rash and negligent
driving by the driver of the Tractor and Trailer bearing
Registration No.KA-42-T-3214-3215. In this regard, a case has
been registered by the Kodihalli Police Station in Crime
No.82/2014.
f) The 1st Respondent is the insurer and the 2nd
Respondent 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 heads of pain and sufferings,
physical and mental agony, loss of income, loss of amenities,
medical, conveyance and nourishment expenses, future medical
expenses, permanent disability etc., Hence, this Petition.
4. Initially, though the notice was duly served on the
Respondent No.1, it was remained absent and hence, it was
placed as exparte on 11.03.2015. Later, the Respondent No.1 has
appeared before this Tribunal through its Learned Counsel and
as per the Order dated 18.04.2015 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 26.06.2015 passed on I.A.No.II, the written
statement filed by the Respondent No.1 is taken on file.
5. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through his Learned Counsel and
has filed the written statement.
SCCH-7 6 MVC.No.423/2015
C/w MVC No.532/2015
6. The Respondent No.1 inter-alia denying the entire
case of the Petitioner in M.V.C.No.423/2015, has further
contended as follows;
a) At the outset the petition filed by the Petitioner
claiming compensation as against it is not maintainable in law.
b) The alleged accident is said to have taken place on
24.06.2014, but, reported to the Police on 27.06.2014. There was
delay of 3 days in reporting the alleged accident. The insured
Tractor and Trailer bearing Registration No.KA-42-R-3214/3215
is falsely implicated for the alleged accident only to help the
Petitioner to have wrongful gains by way of compensation from
its Company. The petition is not maintainable in law.
c) It has issued Insurance Policy No.1 2R5T1MP400
87662599 for the period from 09.05.2014 to 08.05.2015 in
respect of the Agriculture Tractor and Trailer bearing Registration
No.KA-42-T-3214-3215 in favour of the Respondent No.2
Sri.Devalingaiah and the liability of it, if any, is subject to the
terms and conditions of the Insurance Policy, the driving licence
of the driver of the vehicles involved in the accident, the
registration and fitness certificate and permit of the vehicle and
also the provisions of the Motor Vehicles Act and Rules. It shall
not liable to indemnify the owner of the Tractor and Trailer or to
pay any compensation to the Petitioner arising out of the alleged
accident, in the event of breach of all or any of the terms and
SCCH-7 7 MVC.No.423/2015
C/w MVC No.532/2015
conditions of the Insurance Policy and violation of the provisions
of the Motor Vehicles Act and Rules.
d) The compensation of Rupees 1,00,000/- claimed by
the Petitioner is highly exaggerated, exorbitant speculative and
unreasonable. The Petitioner is not entitled to seek for any
compensation from them.
e) The entire allegations contained in the claim petition
are false, frivolous and intended to gain the sympathy of this
Hon'ble Tribunal and seek for more compensation. There is no
truth in the said allegations.
f) There was no accident caused by the insured Tractor
and Trailer bearing Registration No.KA-42-T-3214-3215 as
alleged by the Petitioner. If at all any accident caused by the
insured Tractor and Trailer, there should be at least some
damages caused to the Tractor and Trailer. The Police, who
seized the Tractor and Trailer had subjected to inspection, the
Motor Vehicles Inspector has submitted report stating that, there
are no damages caused to the Tractor and Trailer. The alleged
accident, if any, must be due to self-fall of the Petitioner from the
Motor Cycle. The rider of the Motor Cycle has no valid driving
licence authorizing him to ride the Motor Cycle. The Tractor and
Trailer is deliberately and falsely fixed for the alleged accident
only to help the Petitioner to have wrongful gains by way of
compensation from its Insurance Company. The Petitioner is not
entitled to seek for any compensation from them.
SCCH-7 8 MVC.No.423/2015
C/w MVC No.532/2015
g) The alleged injuries suffered by the Petitioner are
simple in nature and he has been treated for the injuries and the
injuries have healed up well. The Petitioner has become a normal
person and there is no any deformity or disability suffered by the
Petitioner and he has become a normal person capable to
discharge his routine and normal duties and activities. He has
not suffered any loss of income. Hence, the Petitioner is not
entitled to seek for any compensation from them.
h) The Police Investigating Officer or the owner of the
insured Tractor and Trailer have not intimated the alleged
accident to it. The Tractor and Trailer driver was not holding
valid driving licence authorizing him to drive that class of vehicle
at the time of accident. It has no liability to indemnify the owner
of the Tractor and Trailer or to pay any compensation to the
Petitioner arising out of the alleged accident.
i) According to the Petitioner, two vehicles involved in
the alleged accident. The Petitioner has not impleaded the owner
and insurer of the Motor Cycle as parties to this petition. The
petition is bad for non-joinder of proper and necessary parties for
adjudication.
j) The Petitioner has to prove that, he has not filed any
other petition claiming compensation in respect of the very same
alleged accident and on the same cause of action as against them
in any other Forum or Court of Law. In the event, any such
petition is filed, the same shall be got dismissed.
SCCH-7 9 MVC.No.423/2015
C/w MVC No.532/2015
k) If the owner of the insured Tractor and Trailer
remains absent and placed exparte or fails to contest the case, it
may be permitted to contest the case on all grounds under
Section 170 of the Motor Vehicles Act.
l) In the event of allowing the claim petition and
awarding compensation, the higher degree of negligence of the
Motor Cycle rider has to be mitigated and the interest shall be
restricted to 4% per annum.
m) It reserves the right to file additional written
statement, if necessary, in the changed facts and circumstances
of the case, at a later stage. Hence, prayed to dismiss the petition
with costs.
7. The Respondent No.2 inter-alia denying the entire
case of the Petitioner in M.V.C.No.423/2015, has further
contended as follows;
a) The claim petition filed by the Petitioner is not
maintainable either in law or facts.
b) The Petitioner had filed this false complaint against
the owner of the Motor Cycle bearing Registration No.KA-9-K-
6142 for the alleged accident. His name Mr. Devalingaiah, who
was the owner of Tractor bearing Registration No.KA-42-T-3214
and Trailer bearing Registration No.KA-42-T-3215.
SCCH-7 10 MVC.No.423/2015
C/w MVC No.532/2015
c) The Petitioner after sustaining the minor injuries in
self accident filed the false complaint against the driver of the
Motor Cycle. It was registered in Crime No.82/2014 under
Section 279 and 337 of IPC, before the Kodihalli Police Station at
Kanakapura. The Petitioner taking advantage of the false
complaint filed this false claim petition just to make money
illegally and hence, it is not maintainable in law.
d) The Petitioner has failed to mention in the claim
petition the Motor Cycle and type of the vehicle involved in the
alleged accident.
e) The Petitioner just to make out the case stated the
false and created story.
f) There was no accident was took place as alleged in
the claim petition. The Petitioner did not sustain injuries in the
alleged accident.
g) The Petitioner has not produced any documents to
show that, he was earning of the said amount. He reserves his
right to file additional statement in the event of the Petitioner
filing any document in this regard.
h) Without prejudice to Respondent No.1 stand, the
compensation claimed is fanciful, speculative, exorbitant and
highly disproportionate, apart from being without any basis. The
compensation claimed by the Petitioner is highly unjust and
improper.
SCCH-7 11 MVC.No.423/2015
C/w MVC No.532/2015
i) The Petitioner has not furnished the nature of
disability that is caused due to the alleged accident. As per the
available material and injuries mentioned in the petition, it will
not cause any permanent disability.
j) Since the Petitioner has not filed any document in
support of his claim, he may be permitted to file additional
statement of objections in the event of the Petitioner producing
any document to substantiate his claim.
k) He is the owner of the Tractor bearing Registration
No.KA-42-T-3214 and Trailer bearing Registration No.KA-42-T-
3215 and the said vehicle are covered under the Insurance Policy
No.1-2R56T1M P400, Policy No.87662599, valid from 09.05.2014
to 08.05.2015 midnight, is insured with the Respondent No.1
and the policy was in force at the time of the alleged accident.
l) The Tractor driver was having valid driving licence at
the time of alleged accident. If any liability will come to him, it
shall be indemnified by the Respondent No.1 Insurance Company
wholly. Hence, it is not liable to pay any compensation. Hence,
prayed to dismiss the claim petition.
8. The Petitioner in M.V.C.No.532/2015 has filed the
said petition as against the Respondents No.1 and 2 under
Section 166 of the Motor Vehicles Act, 1989 praying to award
compensation of Rupees 25,00,000/- with interest at the rate of
12% per annum from the date of the petition till realization.
SCCH-7 12 MVC.No.423/2015
C/w MVC No.532/2015
9. The brief averments of the Petitioner's case in M.V.C.
No.532/2015 are as follows;
a) On 24.06.2014 at about 1.00 p.m., he was traveling
as a rider in a Motor Cycle bearing Registration No.KA-09-K-6142
on Kanakapura-Kodihalli Main Road, Rampura Doddi Village,
Kodihalli Hobli, Kanakapura Taluk, along with his friend
Mr.Ramdas Naik. He was riding his Motor Cycle slowly,
cautiously and observing all the traffic norms and when he came
near Rampura Doddi Village, at that time, all of a sudden, a
Tractor bearing Registration No.KA-42-T-3214 and Trailer
bearing Registration No.KA-42-T-3215 driven by its driver at a
very high speed and in a rash and negligent manner without
observing the traffic norms and took sudden right turn towards
Rampura Doddi without giving any hand signal or indicator and
came on wrong land and lost the control over his vehicle and
dashed against him.
b) Immediately, he was shifted to the Government
Hospital, Kanakapura for first-aid and then, he was shifted to
Sanjay Gandhi Hospital for better treatment. Again, he was
shifted to Victoria Hospital, Bangalore, wherein, he was admitted
as an inpatient.
c) Still he is bed ridden and under treatment and so far
has spent Rupees 1,00,000/- towards medical, conveyance and
nourishment expenses.
SCCH-7 13 MVC.No.423/2015
C/w MVC No.532/2015
d) Before to the said accident, he was working as an
Electrician under several Contractors and was earning Rupees
9,000/- per month.
e) After the said accident, he is unable to lead a normal
life as earlier and not able to do his job as before and suffering
from huge loss of income.
f) The cause of accident is due to the rash and negligent
driving by the driver of the Tractor and Trailer bearing
Registration No.KA-42-T-3214-3215. In this regard, a case has
been registered by the Kodihalli Police Station in Crime
No.82/2014.
g) The 1st Respondent is the insurer and the 2nd
Respondent 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 heads of pain and sufferings,
physical and mental agony, loss of income, loss of amenities,
medical, conveyance and nourishment expenses, future medical
expenses, permanent disability etc., Hence, this Petition.
10. Initially, though the notice was duly served on the
Respondent No.1, it was remained absent and hence, it was
placed as exparte on 04.04.2015. Later, the Respondent No.1 has
appeared before this Tribunal through its Learned Counsel and
as per the Order dated 18.04.2015 passed on I.A.No.I, the
SCCH-7 14 MVC.No.423/2015
C/w MVC No.532/2015
exparte order is set-aside and the Respondent No.1 is taken on
file. The Respondent No.1 has filed the written statement.
11. Though the notice was duly served on the Respondent
No.2, he was remained absent and hence, he is placed as exparte
on 16.06.2015.
12. The Respondent No.1 inter-alia denying the entire
case of the Petitioner in M.V.C.No.532/2015, has further
contended as follows;
a) At the outset the petition filed by the Petitioner
claiming compensation as against it is not maintainable in law.
b) The alleged accident is said to have taken place on
24.06.2014, but, reported to the Police on 27.06.2014. There was
delay of 3 days in reporting the alleged accident. The insured
Tractor and Trailer bearing Registration No.KA-42-R-3214/3215
is falsely implicated for the alleged accident only to help the
Petitioner to have wrongful gains by way of compensation from
its Company. The petition is not maintainable in law.
c) It has issued Insurance Policy No.1 2R5T1MP400
87662599 for the period from 09.05.2014 to 08.05.2015 in
respect of the Agriculture Tractor and Trailer bearing Registration
No.KA-42-T-3214-3215 in favour of the Respondent No.2
Sri.Devalingaiah and the liability of it, if any, is subject to the
terms and conditions of the Insurance Policy, the driving licence
of the driver of the vehicles involved in the accident, the
SCCH-7 15 MVC.No.423/2015
C/w MVC No.532/2015
registration and fitness certificate and permit of the vehicle and
also the provisions of the Motor Vehicles Act and Rules. It shall
not liable to indemnify the owner of the Tractor and Trailer or to
pay any compensation to the Petitioner arising out of the alleged
accident, in the event of breach of all or any of the terms and
conditions of the Insurance Policy and violation of the provisions
of the Motor Vehicles Act and Rules.
d) The compensation of Rupees 25,00,000/- claimed by
the Petitioner is highly exaggerated, exorbitant speculative and
unreasonable. The Petitioner is not entitled to seek for any
compensation from them.
e) The entire allegations contained in the claim petition
are false, frivolous and intended to gain the sympathy of this
Hon'ble Tribunal and seek for more compensation. There is no
truth in the said allegations.
f) There was no accident caused by the insured Tractor
and Trailer bearing Registration No.KA-42-T-3214-3215 as
alleged by the Petitioner. If at all any accident caused by the
insured Tractor and Trailer, there should be at least some
damages caused to the Tractor and Trailer. The Police, who
seized the Tractor and Trailer had subjected to inspection, the
Motor Vehicles Inspector has submitted report stating that, there
are no damages caused to the Tractor and Trailer. The alleged
accident, if any, must be due to self-fall of the Petitioner from the
Motor Cycle. The rider of the Motor Cycle has no valid driving
SCCH-7 16 MVC.No.423/2015
C/w MVC No.532/2015
licence authorizing him to ride the Motor Cycle. The Tractor and
Trailer is deliberately and falsely fixed for the alleged accident
only to help the Petitioner to have wrongful gains by way of
compensation from its Insurance Company. The Petitioner is not
entitled to seek for any compensation from them.
g) The alleged injuries suffered by the Petitioner are
simple in nature and he has been treated for the injuries and the
injuries have healed up well. The Petitioner has become a normal
person and there is no any deformity or disability suffered by the
Petitioner and he has become a normal person capable to
discharge his routine and normal duties and activities. He has
not suffered any loss of income. Hence, the Petitioner is not
entitled to seek for any compensation from them.
h) The Police Investigating Officer or the owner of the
insured Tractor and Trailer have not intimated the alleged
accident to it. The Tractor and Trailer driver was not holding
valid driving licence authorizing him to drive that class of vehicle
at the time of accident. It has no liability to indemnify the owner
of the Tractor and Trailer or to pay any compensation to the
Petitioner arising out of the alleged accident.
i) According to the Petitioner, two vehicles involved in
the alleged accident. The Petitioner has not impleaded the owner
and insurer of the Motor Cycle as parties to this petition. The
petition is bad for non-joinder of proper and necessary parties for
adjudication.
SCCH-7 17 MVC.No.423/2015
C/w MVC No.532/2015
j) The Petitioner has to prove that, he has not filed any
other petition claiming compensation in respect of the very same
alleged accident and on the same cause of action as against them
in any other Forum or Court of Law. In the event, any such
petition is filed, the same shall be got dismissed.
k) If the owner of the insured Tractor and Trailer
remains absent and placed exparte or fails to contest the case, it
may be permitted to contest the case on all grounds under
Section 170 of the Motor Vehicles Act.
l) In the event of allowing the claim petition and
awarding compensation, the higher degree of negligence of the
Motor Cycle rider has to be mitigated and the interest shall be
restricted to 4% per annum.
m) It reserves the right to file additional written
statement, if necessary, in the changed facts and circumstances
of the case, at a later stage. Hence, prayed to dismiss the petition
with costs.
13. Based on the above said pleadings, I have framed the
following Issues;
ISSUES
In M.V.C.No.423/2015
1. Whether the Petitioner proves that,
the accident occurred due to rash
and negligent driving of the Tractor
SCCH-7 18 MVC.No.423/2015
C/w MVC No.532/2015
and Trailer bearing Registration
No.KA-42-T-3214/3215 by its driver
and in the said accident, the he
sustained injuries?
2. Whether the Petitioner is entitled for
compensation and damages? If so,
how much and from whom?
3. What Order?
In M.V.C.No.532/2015
1. Whether the Petitioner proves that,
the accident occurred due to rash
and negligent driving of the Tractor
and Trailer bearing Registration
No.KA-42-T-3214/3215 by its driver
and in the said accident, the he
sustained injuries?
2. Whether the Petitioner is entitled for
compensation and damages? If so,
how much and from whom?
3. What Order?
14. In order to prove their case, the Petitioner in
M.V.C.No.532/2015 himself has been examined as P.W.1 and
has also examined one witness as P.W.3 by filing the affidavits as
their examination-in-chief and has placed reliance upon Ex.P.1
to Ex.P.18, Ex.P.21 and Ex.P.22 and the Petitioner in
M.V.C.No.423/2015 himself has been examined as P.W.1 by
filing an affidavit as his examination-in-chief and has placed
SCCH-7 19 MVC.No.423/2015
C/w MVC No.532/2015
reliance upon Ex.P.9 to Ex.P.20. On the other hand, the
Respondents have not adduced any evidence on their behalf.
15. Heard the arguments.
16. In support of the submission, the Learned Counsel
appearing for the Petitioners in both the cases, Sri.B.S.Devaraju
has placed reliance upon the decisions reported in,
i) 2014(2) T.A.C. 737 (S.C.) (Dinesh Singh V/s Bajaj
Allianz General Insurance Company Ltd.,), wherein, it is
observed that,
Motor Vehicles Act, 1988 Section 166,
168 and 173 - Quantum of compensation -
appeal for enhancement - injured aged 24
years, B.E. Degree holding, working as
quality Engineer - Sustained grievous and
facture injuries - Amputation of left leg
above knee - Remained in Hospital as an
inpatient from 13th April, 2004 till June,
2004 - Suffered 60% permanent disability of
whole body - Tribunal awarded in all Rupees
30,60,160/- as compensation - High Court
on appeal reduced compensation to Rupees
6,32,000/- - In absence of any documentary
evidence, Tribunal as well as High Court
rightly assessed monthly salary as Rupees
12,840/- - Injured was out of employment
for a period of two years - Tribunal rightly
Rupees 50,000/- awarded towards loss of
marriage Rupees 3,.08,160/- for loss of
earnings for two years - Having regard to
60% permanent disability Tribunal applied
multiplier of 17 and awarded Rupees
SCCH-7 20 MVC.No.423/2015
C/w MVC No.532/2015
15,72,000/- towards future loss of earnings
- Reasoning of High Court that, injured took
employment subsequently and did not suffer
any financial loss not sustainable - Tribunal
rightly determined compensation - Injured
operated upon twice, moving with assistance
of artificial limb and still has to take
treatment - Compensation of Rupees
70,000/- towards pain and agony enhanced
to Rupees 1,20,000/- - Award of Rupees
2,50,000/- towards loss of amenities
enhanced to Rupees 3,50,000/- prospects
enhanced to Rupees 1,00,000/- - Injured
still requires treatment and high speed to
change his artificial limb - Award of Tribunal
on said enhance from Rupees 5,00,000/- to
Rupees 5,50,000/- - Rupees 3,10,000/-
towards medical expenditure rightly granted
by Tribunal and High Court was at fault in
reducing same- Claimant held entitled to
Rupees 33,10,160/- as compensation -
Interest awarded at 6% p.a.,
ii) 2014(1) T.A.C. 369 (S.C.) (Syed Sadiq, etc., V/s
Divisional Manager, United India Insurance Company Ltd.,),
wherein, it is observed that,
Motor Vehicles Act, 1988 Section 168
and 173 - Quantum of compensation -
appeal for enhancement - injured a
vegetable vendor aged 24 years - Sustained
injuries lower end of right femur - right leg
amputated- also sustained injuries over his
left upper arm- Doctor stated disability of
24% to upper limb and 85% to lower limb-
Tribunal assessed disability at 30% of whole
body - High Court determined disability at
65% without assigning proper reason - Error
committed by High Court - Occupation of
SCCH-7 21 MVC.No.423/2015
C/w MVC No.532/2015
vegetable vending often involves selling
vegetables in Cart which requires 100%
mobility - Disability determined at 85% to
determine loss of income - considering
present state of economy and rising prices
reasonable income fixed at 6,500/- p.m., -
economy and rising prices reasonable
income fixed at 6,500/- p.m., - claimant was
self-employed and was aged 24 years, 50%
increase allowed towards future prospects of
income - Multiplier of 18 applied -
compensation towards loss future income
awarded at Rupees 17,90,100/- plus Rupees
50,000/- towards cost of artificial leg,
Rupees 75,000/- towards pain and suffering,
Rupees 50,000/- towards loss of marriage
prospects, Rupees 75,000/- towards loss of
amenities, Rupees 1,00,000/- towards
medical and incidental cost and Rupees
25,000/- towards cost of litigation -
Claimant held entitled to Rupees
21,65,100/- with interest at 9%.
iii) 2015(2) T.A.C. 692 (S.C.) (Jakir Hussain V/s Sabir
and Others), wherein, it is observed that,
Motor Vehicles Act, 1988 Section 166,
168 and 173 - Quantum of compensation -
appeal for enhancement - injury - fracture -
Right arm-personal injuries - Claimant
sustained grievous injuries - functional
disability 100% - compensation fracture of
right arm of claimant - claimant was earning
Rupees 4,500/- p.m., by working as a driver
at at the time of accident - Tribunal awarded
total compensation of Rupees 4,38,000/- -
On appeal by claimant, High Court
enhanced amount of compensation by
1,77,200/- - Held it would be just and
SCCH-7 22 MVC.No.423/2015
C/w MVC No.532/2015
reasonable to consider claimant's daily wage
at Rupees 150/- Petitioner day or Rupees
4,500/- per month. i.e., Rupees 54,000/-
p.a., - Loss of earnings would be virtually
100% - Total loss of future earnings of
claimant would be at 54,000/- X 16 =
Rupees 8,64,000/- - Rupees 2,00,000/-
awarded towards future medical treatment
and incidental expenses - Further Rupees
1,50,000/- each awarded towards pain,
suffering and trauma and loss of amenities
and enjoyment of life and happiness-
Further an amount of Rupees 20,000/-
towards special diet, Rupees 40,000/-
towards attendant expenses, Rupees
20,000/- towards transportation and Rupees
40,000/- towards costs incurred during
pendency of appeal awarded - Thus total
compensation to claimant enhanced to
Rupees 17,60,500/- with interest at 9% p.a.,
iv) 2013 AIR SCW 5375 (Minu Rout and Another V/s
Satya Pradyamna Mohapatra and Others), wherein, it is
observed that,
(B) Motor Vehicles Act (59 of 1988), S.
168 - Compensation - Enhancement -
deceased working as driver of Car which is
skilled job- Monthly salary of deceased driver
taken at Rupees 6,000/- - Applying
multiplier of 16 to multiplicand of Rupees
62,400/-, amount of Rupees 9,98,400/-
arrive at towards loss of dependency -
Deduction of 50% out of total loss of
dependency based on contributory
negligence, not proper - Adding Rupees
50,000/- towards loss of love and affection
and funeral expenses, total compensation of
SCCH-7 23 MVC.No.423/2015
C/w MVC No.532/2015
Rupees 10,48,400/- held liable to be paid -
Insurance Company also liable to pay
interest at rate of 9% per annum, from date
of application till date of payment.
v) 2011(2) AIR Kar R 694 (Rudra V/s Divisional
Manager, National Insurance Company Ltd., and Another),
wherein, it is observed that,
Motor Vehicles Act (59 of 1988), S. 168 -
Assessment of compensation - Loss of future
earnings- Claimant, aged 25 years, working
as coolie was assessed by Doctor to have
suffered disability of whole body at 29% -
doctor in his evidence stated that, nature of
disability was such that, claimant would not
be able to work as coolie or do any other
manual work - rejection of assessment made
by Doctor by High Court and instead
presuming disability at 15% of whole body,
improper - Supreme Court re-computed loss
of future income by considering disability at
29% and total compensation of r s2,96,920/-
which was rounded off to Rupees 3,00,000/-
granted to claimant.
vi) 2010 ACJ 1618 (Jitender Kumar V/s Virender
Singh and Others), wherein, it is observed that,
Quantum - injury - principles of
assessment - Loss of earning capacity -
Amputation of leg below knee - Disability
assessed at 70 per cent - Doctor opined that,
disability towards whole body is 33 per cent
- Whether the Tribunal was justified in
assessing loss of earnings capacity at 33 per
SCCH-7 24 MVC.No.423/2015
C/w MVC No.532/2015
cent - Held: no; loss of earning capacity
assessed at 50 per cent.
Quantum - injury - Leg - Amputation
of right leg below knee - disability towards
limb assessed at 70 per cent and towards
whole body at 33 percent - injured doing a
private job- Tribunal took minimum wages
into consideration, fixed loss of earning
capacity at 33 percent and allowed Rupees
2,09,000/- plus Rupees 2,25,000/- for
medical expenses, Rupees 40,000/- for
conveyance and special diet and Rupees
50,000/- for pain and suffering - Appellate
Court assessed loss of earning capacity at 50
per cent and allowed Rupees 4,74,300/-
plus Rupees 2,99,470/- towards cost of
artificial limb, Rupees 1,00,000/- each for
pain and suffering, for loss of amenities and
for disfiguration, Rupees 2,25,000/- for
medical expenditure, Rupees 80,000/- for
conveyance and Rupees 20,000/- for special
diet - Award enhancement from Rupees
5,24,000/- to Rupees 13,98,770/-
vii) 2010 ACJ 760 (N. Obalaranga V/s United India
Insurance Co. Ltd., and Another), wherein, it is observed that,
Quantum - injury - Principles of
assessment - Loss of earnings or loss of
earnings capacity - Whether injured is
entitled to loss of earnings or loss earnings
capacity due to permanent disablement -
Held: yes; it is a well established head of
claim; principles expounded by several
authors and case law discussed and broad
conclusions drawn.
SCCH-7 25 MVC.No.423/2015
C/w MVC No.532/2015
viii) 1998 ACJ 859 (Shashendra Lahiri V/s UNICEF and
Others), wherein, it is observed that,
Quantum - Interest - Allowed at the
rate of 12 per cent per annum from the date
of claim till date of payment.
17. My answers to the above said Issues are as follows;
M.V.C.No.432/2015
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 50,000/- with
interest at the rate of 6%
p.a. from the date of the
petition till the date of
payment, from the
Respondent No.1.
Issue No.3 : As per the final Order,
M.V.C.No.532/2015
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 11,49,085/-
SCCH-7 26 MVC.No.423/2015
C/w MVC No.532/2015
with interest at the rate
of 6% p.a. 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
18. ISSUE NO.1 IN BOTH THE CASES :- The P.W.1,
who is the Petitioner in M.V.C.No.532/2015 has stated in his
examination-in-chief that, on 24.06.2014 at about 1.00 p.m., he
was traveling as a pillion rider in a Motor Cycle bearing
Registration No.KA-09-K-6142 on Kanakapura-Kodihalli Main
Road, Rampura Doddi Village, Kodihalli Hobli, Kanakapura
Taluk, along with his friend Mr.Ramdas Naik, i.e., the Petitioner
in M.V.C.No.423/2015 and he was riding his Motor Cycle slowly,
cautiously and observing all the traffic norms and when he came
near Rampura Doddi Village, at that time, all of a sudden, a
Tractor bearing Registration No.KA-42-T-3214 and Trailer
bearing Registration No.KA-42-T-3215 driven by its driver at a
very high speed and in a rash and negligent manner without
observing the traffic norms and took sudden right turn towards
Rampura Doddi without giving any hand signal or indicator and
came on wrong land and lost the control over his vehicle and
dashed against his vehicle from left side. He has further stated
that, due to the tremendous impact, his leg amputed on the spot,
then, he fell down from the vehicle and sustained grievous
injuries to his left leg and right hand. He has further stated that,
SCCH-7 27 MVC.No.423/2015
C/w MVC No.532/2015
immediately, he was shifted to the Government Hospital,
Kanakapura for first-aid and then, he was shifted to Sanjay
Gandhi Hospital for better treatment and again, he was shifted to
Victoria Hospital, Bangalore, wherein, he was admitted as an
inpatient from 24.06.2014 to 17.07.2014 and it is diagnosed
that, he has suffered the injuries, i.e., amputation of left leg
above knee joint and tenderness present over left femur and
injuries to other parts of the body. He has further stated that, in
the said Hospital, X-ray were done and injuries confirmed and
revision amputation above knee. He has further stated that, the
cause of accident is due to the rash and negligent driving by the
driver of the Tractor and Trailer bearing Registration No.KA-42-T-
3214-3215.
19. The P.W.2, who is the Petitioner in
M.V.C.No.423/2015, has also stated the same evidence of P.W.1
in his examination-in-chief. He has further stated that, due to
the tremendous impact, he fell down from the vehicle and
sustained grievous injuries to his right shoulder and left leg and
immediately, he was shifted to the Government Hospital,
Kanakapura for first-aid and then, he was shifted to the Sanjay
Gandhi Hospital for better treatment and again, he was shifted to
Victoria Hospital, Bangalore, wherein, he was admitted as an
inpatient and it is diagnosed that, he has suffered the injuries,
i.e., abrasion over right shoulder 3 x 2 cm, right face 2 x 1 cm,
abrasion over left knee 3 x 1 cm, abrasion left popliteal bone 5 x
3 cm, abrasion over left foot dorsum 3 x 1 cm and abrasion over
SCCH-7 28 MVC.No.423/2015
C/w MVC No.532/2015
little toe-lat aspect 2.5 x 1 cm and in the said Hospital, X-rays
were done and injuries confirmed and treated conservatively.
20. From the above said oral version of P.W.1 and P.W.2,
it appears that, at the time of accident, the Petitioner in
M.V.C.No.532/2015 was riding the Motor Cycle bearing
Registration No.KA-09-K-6142 and the Petitioner in
M.V.C.No.423/2015 was a pillion rider of the said Motor Cycle.
The same has also been clearly stated by the P.W.1 and P.W.2 in
their cross-examination. Both the P.W.1 and P.W.2 have clearly
stated in their cross-examination that, the Petitioner in
M.V.C.No.532/2015 had driving licence, which obtained from
Ramanagar RTO Office and he has no hurdle to produce his
driving licence extract. But, they did not care to produce the
driving licence or its authenticated extract copy. The P.W.1 has
further stated that, in the said accident, he lost his driving
licence. Further, the Petitioner in M.V.C.No.532/2015 has
produced Ex.P.16 S.S.L.C. Marks Card, which disclosed that, his
date of birth is on 26.05.1996 and the Petitioner in
M.V.C.No.423/2015 has produced Ex.P.20 Election Identity Card
relating to him, which disclosed that, his date of birth is on
15.06.1996. The date of accident is on 24.06.2014. On perusal of
the said dates, it appears that, at the time of accident, both the
Petitioners were 19 years old. Further, the P.W.2 in his cross-
examination has stated that, he has not seen the driving licence
relating to the rider of the Motor Cycle.
SCCH-7 29 MVC.No.423/2015
C/w MVC No.532/2015
21. But, based on the same, it cannot be said that, the
entire negligence is on the part of the Petitioner in
M.V.C.No.532/2015 in riding the Motor Cycle bearing
Registration No.KA-09-K-6142, as, the Petitioner in
M.V.C.No.532/2015 has produced Ex.P.1 FIR, Ex.P.2 Complaint,
Ex.P.3 Spot Mahazar, Ex.P.4 Seizure Mahazar, Ex.P.5 P.F.,
Ex.P.6 IMV Report, Ex.P.7 Wound Certificate, Ex.P.8 Charge
Sheet, Ex.P.9 Discharge Summary, Ex.P.12 Photographs 3 in
numbers, Ex.P.13 CD relating to Ex.P.12 Photographs and
Ex.P.14 X-ray Film and the Petitioner in M.V.C.No.423/2015 has
produced Ex.P.19 Wound Certificate, which disclosed that, the
entire negligence is on the part of the driver of the offending
Tractor bearing Registration No.KA-42-T-3214 and Trailer
bearing Registration No.KA-42-T-3215, which dashed to the
Motor Cycle bearing Registration No.KA-09-K-6142 and due to
the said impact, the left leg of the Petitioner in
M.V.C.No.532/2015 was amputed on the spot itself, which is
grievous in nature and the Petitioner in M.V.C. No.423/2015 had
sustained six simple injuries, which is clear from the following
discussion. Furthermore, to consider their defence, the
Respondents have not adduced any evidence on their behalf.
Further, the P.W.1 in his cross-examination has clearly stated
that, at the time of accident, he was riding the Motor Cycle with
20 - 25 kmph and the offending vehicle came from behind their
vehicle and after the accident, he was shifted to the Government
Hospital, Kanakapura for treatment and thereafter, he was
shifted to Sanjay Gandhi Hospital, Bangalore and both the
Government Hospital, Kanakapura and Sanjay Gandhi Hospital,
SCCH-7 30 MVC.No.423/2015
C/w MVC No.532/2015
Bangalore had not admitted him in their Hospital for treatment
and he was admitted in the said Hospital for 25 days. He has
further stated that, his left leg is amputed up to knee. Further,
the P.W.2 has clearly stated in his cross-examination that, the
offending vehicle came from behind their vehicle and after the
accident, he was shifted to the Government Hospital,
Kanakapura for treatment and thereafter, he was shifted to
Sanjay Gandhi Hospital, Bangalore and both the said Hospitals
had not admitted him in their Hospital for treatment and
thereafter, he was shifted to Victoria Hospital and he was
admitted in the said Hospital for 15 days. Furthermore, both the
P.W.1 and P.W.2 have clearly denied the suggestions put to them
by the Respondents, in their cross-examination that, at the time
of overtaking, the alleged accident was not occurred, but, the
P.W.1 himself overtaking the offending Tractor and Trailer and
due to his negligence, the alleged accident was taken place and
due to own negligence itself, the accident was caused and not
due to the negligence on the part of the driver of the offending
vehicle. From this, it appears that, though the P.W.1 and P.W.2
have been cross-examined by the Respondents, nothing has been
elicited from their mouth to consider their defence.
22. The contents of Ex.P.1 FIR and Ex.P.2 Complaint
clearly disclosed that, the relative of the Petitioner in
M.V.C.No.532/2015 had lodged Ex.P.2 Complaint before the
Kodihalli Police Station as against the driver of the offending
Tractor bearing Registration No.KA-42-T-3214 and Trailer
bearing Registration No.KA-42-T-3215 on 24.06.2014 at 1.00
SCCH-7 31 MVC.No.423/2015
C/w MVC No.532/2015
p.m., when the Petitioner in M.V.C.No.532/2015 was proceeding
on the Suzuki Motor Cycle bearing Registration No.KA-09-K-6142
as a rider along with pillion rider, i.e., the Petitioner in
M.V.C.No.423/2015, on Kanakapura - Kodihalli Main Road,
Rampura Doddi Village, Kodihalli Hobli, the driver of the
offending Tractor bearing Registration No.KA-42-T-3214 and
Trailer bearing Registration No.KA-42-T-3215 came with very
high speed, rash and negligent manner and suddenly took right
turn without observing and following traffic rules and signal and
came on wrong side and dashed to the said Motor Cycle and due
to the said impact, the left leg of the Petitioner in
M.V.C.No.532/2015 was amputed on the accidental spot itself
and both the Petitioners were fell down on the road and they had
sustained injuries and immediately, they were shifted to Sanjay
Gandhi Hospital through Ambulance and thereafter, they were
shifted to Victoria Hospital for further treatment and as such, he
prayed to take necessary legal action as against the driver of the
offending Tractor and Trailer and based on Ex.P.2 Complaint, the
said Police have registered a criminal case as against the driver of
the said Tractor and Trailer for the offences punishable under
Section 279, 337 and 338 of IPC under Crime No.82/2014. No
doubt, though the accident was taken place on 24.06.2014 at
1.00 p.m., Ex.P.2 Complaint is lodged on 27.06.2014 at 5.30
p.m., which disclosed that, there is 3 days delay in lodging
Ex.P.2 Complaint in respect of the said road traffic accident. But,
it no way affected to consider the case of the Petitioners in both
the cases, as, in the complaint itself, the complainant has clearly
mentioned that, soon after the accident, both the Petitioners were
SCCH-7 32 MVC.No.423/2015
C/w MVC No.532/2015
shifted to Hospitals for treatment. Further, it is clear from the
medical documents as well as Police documents that, initially,
both the Petitioners were shifted to Sanjay Gandhi Hospital and
thereafter, they were shifted to Victoria Hospital and they took
treatment to the said accidental injuries by admitting as an
inpatient. Furthermore, in the said road traffic accident, the
Petitioner in M.V.C.No.532/2015 had lost his left leg as it was
amputed in the accidental spot itself.
23. The contents of Ex.P.3 Spot Mahazar, Ex.P.4 Seizure
Mahazar, Ex.P.5 PF and Ex.P.6 IMV Report further clearly
disclosed that, due to very high speed, rash and negligent
manner of driving of the offending Tractor bearing Registration
No.KA-42-T-3214 and Trailer bearing Registration No.KA-42-T-
3215 by its driver itself, the said road traffic accident was taken
place and there was no negligence on the part of the Petitioner in
M.V.C.No.532/2015 in riding the Motor Cycle and as such, the
Police have seized the said offending Tractor and Trailer from the
custody of its owner. The damages caused to both the vehicles
are clearly shown in Ex.P.6 IMV Report, which clearly disclosed
about the terrific impact of the accident. It is also clearly
mentioned in Ex.P.6 IMV Report that, the said accident was not
occurred due to any mechanical defects of the said vehicles.
24. The contents of Ex.P.7 Wound Certificate disclosed
that, with the history of road traffic accident at around 1.00 p.m.,
on 24.06.2014 near D.K.Shivakumar Estate, Kodihalli,
Kanakapura Road, Ramanagara District, the Petitioner in
SCCH-7 33 MVC.No.423/2015
C/w MVC No.532/2015
M.V.C.No.532/2015 was riding a two wheeler, when hit by a
Tractor, he was admitted in Sanjay Gandhi Hospital on
24.06.2014 at 3.35 p.m., itself and on examination, it is found
that, he had sustained injuries, i.e., amputation at knee joint
level left lower limb tenderness left femur, which is grievous in
nature.
25. The contents of Ex.P.9 Discharge Summary, Ex.P.12
Photographs 3 in numbers, Ex.P.13 CD relating to Ex.P.12
Photographs and Ex.P.14 X-ray Film clearly disclosed that, it is
diagnosed that, the Petitioner in M.V.C.No.532/2015 had
sustained traumatic total amputation of the left leg at knee level
and by admitting as an inpatient from 24.06.2014 to 17.07.2014,
i.e., for 24 days, he took treatment to the said accidental injuries
and during the course of treatment, the revision and amputation
above knee was done on 01.07.2014. From the said medical
documents, it clearly goes to show that, in the said road traffic
accident, the Petitioner in M.V.C.No.532/2015 has lost his left
leg, i.e., knee level.
26. The contents of Ex.P.19 Wound Certificate disclosed
that, that, with the history of road traffic accident at around 1.00
p.m., on 24.06.2014, near D.K.Shivakumar Estate, Kodihalli,
Kanakapura Road, Ramanagara District, the Petitioner in
M.V.C.No.423/2015 was a pillion rider of two wheeler, when hit
by a Tractor, he was admitted in Sanjay Gandhi Hospital on
24.06.2014 at 3.35 p.m., itself and on examination, it is found
that, he had sustained injuries, i.e., abrasion over right shoulder
SCCH-7 34 MVC.No.423/2015
C/w MVC No.532/2015
3 x 2 cm, right face 2 x 1 cm, abrasion over left knee 3 x 1 cm,
abrasion left popliteal bone 5 x 3 cm, abrasion over left foot
dorsum 3 x 1 cm and abrasion over little toe-lat aspect 2.5 x 1
cm, which are simple in nature. From the said medical evidence,
it clearly disclosed that, in the said road traffic accident, the
Petitioner in M.V.C.No.423/2015 had sustained six simple
injuries.
27. The contents of Ex.P.8 Charge Sheet further clearly
disclosed that, since during the course of investigation, it is
found that, due to very high speed, rash and negligent manner
of driving of the offending Tractor bearing Registration No.KA-42-
T-3214 by its driver itself, the said road traffic accident was
taken place on 24.06.2014 at 1.00 p.m., near Rampura Doddi,
Kodihalli to Kanakapura Road, which dashed the Motor Cycle
bearing Registration No.KA-09-K-6142, wherein, the Petitioner in
M.V.C.No.532/2015 was proceeding as a rider and the Petitioner
in M.V.C.No.423/2015 was proceedings as a pillion rider and due
to the said impact, the left leg of the Petitioner in
M.V.C.No.532/2015 was amputed on the accidental spot itself
and the Petitioner in M.V.C.No.423/2015 had sustained injuries
on his left leg and the Motor Cycle badly damaged and the
Petitioner in M.V.C.No.532/2015 had sustained grievous injury
and the Petitioner in M.V.C. No.423/2015 had sustained simple
injuries and as such, after thorough investigation, the
Investigating Officer had filed a charge sheet as against the driver
of the offending Tractor and Trailer for the offences punishable
under Section 279, 337 and 338 of IPC .There is no allegation
SCCH-7 35 MVC.No.423/2015
C/w MVC No.532/2015
leveled by the Investigating Officer as against the Petitioner in
M.V.C.No.532/2015 about his negligence in the commission of
the said road traffic accident.
28. From the above said material evidence, both oral and
documentary, it clearly goes to show that, due to very high speed,
rash and negligent manner of driving of the offending Tractor
bearing Registration No.KA-42-T-3214 by its driver itself, the said
road traffic accident was taken place and the offending Tractor
and Trailer as well as its driver are very much involved in the
said road traffic accident and there was no negligence on the part
of the Petitioner in M.V.C.No.532/2015 in riding the Motor Cycle
bearing Registration No.KA-09-K-6142 and in the said road
traffic accident, the Petitioner in M.V.C.No.532/2015 had lost his
left leg up to knee level and the Petitioner in M.V.C.No.423/2015
had sustained six simple injuries. Accordingly, I answered
Issue No.1 in both the cases in the Affirmative.
29. ISSUE NO.2 in BOTH THE CASES :-
30. IN M.V.C.No.423/2015 :- The P.W.2 has stated that,
he was a bachelor and aged 20 years. The Petitioner has
produced Ex.P.20 Election Identity Card relating to him, which
disclosed that, his date of birth is on 15.06.1996. The date of
accident is on 24.06.2014. From the said dates, it appears that,
at the time of accident, the Petitioner was 19 years old. Hence,
the age of the Petitioner is considered as 19 years at the time of
accident.
SCCH-7 36 MVC.No.423/2015
C/w MVC No.532/2015
31. The P.W.2 has stated that, prior to the accident, he
was working as an Electrician and was earning Rupees 9,000/-
per month. To consider the same, the Petitioner has not
produced any authenticated documents. Even the Petitioner has
not disclosed his educational qualification. Hence, the said
evidence stated by the P.W.2 in respect of his avocation and
income cannot be believed and accept.
32. The P.W.2 has stated that, he was discharged with an
advise to come for regular dressing and follow-up treatment and
he followed the same. He has further stated that, he is
continuously under treatment from the date of accident till today
and after discharge from the said hospital, he visited the Doctor
for dressing the wounds and follow-up treatment once in a week
for the period of 3 months and later, once in a month for the
period of 9 months. He has further stated that, even now, he is
suffering from frequent pain and swelling at his right shoulder
and left leg and he is not able to walk, stand and sit for long
period and he is not able squat on hard surface or use Indian
toilet and he is not able to sleep in left side and he is not able to
do any physical or manual works. He has further stated that,
after the said accident, he is not able to lead a normal life as
earlier and he is not able to do his work as earlier and suffering
from huge loss of income. He has further stated that, he is a
bachelor and now, he is the only earning member in the family
and he has no other sources of income to lead his lively hood and
the injuries and disabilities suffered by him will affect his
SCCH-7 37 MVC.No.423/2015
C/w MVC No.532/2015
marriage prospects and bright future and the life is miserable to
him.
33. But, only based on the said oral version of P.W.2, it
cannot be believed and accept that, due to the said accidental
injuries, the Petitioner is suffering from difficulties and disability,
which affected his bright future and as such, he is entitled for
compensation on all the heads, as, except Ex.P.19 Wound
Certificate, the Petitioner has not produced any medical
documents and the disability certificate issued by the competent
Doctor. Even the Petitioner has not examined the treated Doctors
to consider the line of treatment and length of treatment to the
said accidental injuries. Further, the Petitioner in his
examination-in-chief itself has clearly stated that, he has treated
conservatively. Even no medical documents produced by the
Petitioner to show that, after discharge, he has been regularly
taking follow-up treatment as per the advise of the Doctors. More
so, as per Ex.P.19 Wound Certificate, the Petitioner had only
sustained six simple injuries. Even the Petitioner has not
produced the medical prescriptions and medical bills. Therefore,
whatever stated by the P.W.2 in respect of the difficulties and
disability, which arising out of the accidental injuries cannot be
believed and accept. Hence, the Petitioner is not entitled for
compensation under different heads.
34. However, at the time of accident, the Petitioner was
19 years old and he had sustained six simple injuries as per
Ex.P.19 Wound Certificate, this Tribunal feels that, it is just,
SCCH-7 38 MVC.No.423/2015
C/w MVC No.532/2015
proper and necessary to award the global compensation of
Rupees 50,000/- to the Petitioner, which is fair and reasonable.
Hence, the Petitioner is entitled for global compensation of
Rupees 50,000/- along with interest at the rate of 6% per annum
on the above said sum from the date of petition till payment.
35. IN M.V.C.No.532/2015 :- The P.W.1 has stated that,
he is a bachelor and aged 20 years. The Petitioner has produced
Ex.P.18 Election Identity Card relating to him, which disclosed
that, his date of birth is on 15.06.1995. He has also produced
Ex.P.16 S.S.L.C. Marks Card relating to him, which disclosed
that, his date of birth is on 26.05.1996. As Ex.P.18 Election
Identity Card is not an authenticated document to consider the
age of the Petitioner, when he has produced the School
document, i.e., Ex.P.16 S.S.L.C. Marks Card, the date of birth is
shown in Ex.P.18 Election Identity Card cannot be taken into for
consideration of the age of the Petitioner at the time of accident.
The date of accident is on 24.06.2014. Based on the said dates, it
appears that, at the time of accident, the Petitioner was 19 years
old. Hence, the age of the Petitioner is considered as 19 years at
the time of accident.
36. The P.W.1 has stated that, prior to the accident, he
was working as an Electrician and was earning Rupees 9,000/-
per month. The Petitioner has produced Ex.P.16 S.S.L.C. Marks
Card and Ex.P.17 First PUC Marks Card relating to him. As this
Tribunal has already come to the conclusion that, at the time of
accident, the Petitioner was 19 years old. From the said material
SCCH-7 39 MVC.No.423/2015
C/w MVC No.532/2015
evidence, it appears that, the Petitioner is an educated person at
the time of accident. Except the said material documents, the
Petitioner has not produced any authenticated documents to
show that, he discontinued his education and he was working as
an Electrician and he was earning a sum of Rupees 9,000/- per
month at the time of accident. The same has been clearly
admitted by the P.W.1 in his cross-examination. Even the
Petitioner has not produced his Bank Statement to show his
actual income at the time of accident. Hence, the evidence stated
by the Petitioner in respect of his avocation and income cannot
be believed and accept. However, at the time of accident, the
Petitioner was 19 years old and as admitted by himself, he was a
bachelor, by considering the same, this Tribunal feels that, it is
just, proper and necessary to consider the notional income of the
Petitioner is of Rupees 6,000/- per month, which is believable
and acceptable one. Hence, the income of the Petitioner is
considered as Rupees 6,000/- per month at the time of accident.
37. The P.W.1 has stated that, he was discharged on
17.07.2014 with an advise to come for regular dressing and
follow-up treatment and he is following the same till today. He
has further stated that, he is continuously under treatment from
the date of accident till today and after discharge from the said
Hospital, he visited the Doctors for dressing the wounds and
follow-up treatment once in a week for the period of 3 months
and later, once in a month for the period of 9 months. Based on
Ex.P.7 Wound Certificate, Ex.P.9 Discharge Summary, Ex.P.12
Photographs, Ex.P.13 CD and Ex.P.14 X-ray Film, this Tribunal
SCCH-7 40 MVC.No.423/2015
C/w MVC No.532/2015
has already come to the conclusion that, in the said road traffic
accident, the left leg up to knee level is amputed and revision
amputation knee level done on 01.07.2014 and by admitting as
an inpatient from 24.06.2014 to 17.07.2014, i.e., for 24 days, the
Petitioner took treatment to the accidental injuries at Victoria
Hospital. It is clearly mentioned in Ex.P.9 Discharge Summary
that, the revision amputation knee level was done on 01.07.2014
with subarad block. From this, it is made crystal clear that, the
Petitioner was amputation at knee level, which is grievous in
nature. Hence, even after discharge from the Hospital, he
required the regular dressing the wounds and follow-up
treatment as per the advise of the treated Doctors. Therefore,
even though the Petitioner has not produced any outpatient
records, by considering the nature of injuries, line of treatment
and length of treatment, it can very well be believed and accept
the follow-up treatment taken by the Petitioner to the accidental
injuries as per the advise of the Doctors.
38. The P.W.1 has stated that, even now, he is suffering
from frequent pain and swelling at his amputed fracture site and
he is not able to walk, stand and sit for long period and he is not
able to walk without the help of helper and he is not able to
squat on hard surface or use Indian toilet and he is not able to
sleep in left side and he is not able to do any physical or manual
works. He has further stated that, after the said accident, he is
not able to lead a normal life as earlier and he is not able to do
his work as earlier and suffering from huge loss of income. He
has further stated that, he is a bachelor and now he is the only
SCCH-7 41 MVC.No.423/2015
C/w MVC No.532/2015
earning member in the family and he has no other sources of
income to lead his lively hood and the injuries and disabilities
suffered by him will affect his marriage prospects and bright
future and the life is miserable to him.
39. The P.W.3, who is the Doctor, who has assessed the
disability of the Petitioner, has stated in his examination-in-chief
that, recently he examined the Petitioner at Victoria Hospital on
22.07.2015 for disability assessment and on clinical
examination, he found the disabilities, i.e., cannot stand and
bear weight on left leg, cannot sit cross legged, squat use Indian
toilet, cannot climb up and down the stair case, cannot kneel left
foot, ankle, left knee and lower third of left thigh is absent due to
above knee post amputation status and the Petitioner always
walks with the support of 2 axillary crutches and the length of
the amputation stump is about 38 cms and is amputation has
been done at the level of middle one third and lower one third
junction of left thigh. He has further stated that, the radiological
examination revealed that, soft tissues and bones of left foot,
ankle, left leg, left knee and lower one third of left thigh is absent
due to post Traumatic Auto amputation. He has further stated
that, based on the findings and guidelines and gazette
notification issued by the Ministry of Social Justice and
Empowerment, GOI, the Petitioner suffers the permanent
residual physical disability of about 80%. He has further stated
that, the Petitioner says he was an Electrician prior to the said
accident and if that is so, he has 100% Occupational disability.
SCCH-7 42 MVC.No.423/2015
C/w MVC No.532/2015
The P.W.3 has produced Ex.P.21 Outpatient Book and Ex.P.22
Inpatient Records.
40. Based on Ex.P.7 Wound Certificate, Ex.P.9 Discharge
Summary, Ex.P.12 Photographs, Ex.P.13 CD and Ex.P.14 X-ray
Film, this Tribunal has already come to the conclusion that, in
the said road traffic accident, the left leg up to knee level is
amputed and revision amputation knee level done on
01.07.2014.
41. 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, due to the said
accidental injuries, the Petitioner is suffering from permanent
residual and functional disability of about 80% as the Petitioner
was an Electrician prior to the date of accident, if his avocation is
considered, he has 100% occupational disability, as, while
discussing above, this Tribunal has already come to the
conclusion that, the Petitioner has utterly failed to prove his
avocation, i.e., an Electrician and was 19 years old at the time of
accident. Further, the Petitioner has not examined the treated
Doctor and has not produced disability certificate issued by the
competent Doctor. Even the P.W.3 has not produced the
disability certificate. Furthermore, the Petitioner has amputation
knee joint level, which is clear from the above said medical
documents and the same has been clearly admitted by the P.W.3
in his cross-examination. Further, the P.W.3 in his cross-
examination has clearly stated that, the wound is healed.
SCCH-7 43 MVC.No.423/2015
C/w MVC No.532/2015
Further, it is suggested by the Respondent No.2 to P.W.3 that,
the permanent residual functional disability of the Petitioner is
only 60% and not 80%. From this, it appears that, the
Respondents have admitted about the permanent residual
functional disability of the Petitioner is 60%. By considering the
said reasons, this Tribunal feels that, due to the said accidental
injuries, the Petitioner is not suffering from permanent residual
and functional disability of 80% as stated by the P.W.3.
42. However, by considering the age of the Petitioner,
nature of injuries, line of treatment and length of treatment and
also by considering the material evidence of P.W.3 in respect of
the Shortening of left lower limb and amputation of left leg up to
knee level, this Tribunal feels that, due to the said accidental
injuries, the Petitioner is suffering from the permanent physical
and functional disability of 60% to the whole body, which is
believable and acceptable one.
43. As this Tribunal has already come to the conclusion
that, the permanent physical and functional disability of the
Petitioner is of 60%. 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 60%.
44. As this Tribunal has already come to the conclusion
that, the age of the Petitioner was 19 years at the time of
SCCH-7 44 MVC.No.423/2015
C/w MVC No.532/2015
accident. The multiplier corresponding to the said age as per
Sarala Varma's case is 18.
45. As the Petitioner is suffering from permanent physical
and functional disability of 60% to the whole body. The notional
income of the Petitioner is already considered as Rupees 6,000/-
per month. Therefore, the loss arising out of the said 60%
disability for monthly income of Rupees 6,000/- by applying
multiplier 18 comes to Rupees 7,77,600/-, i.e., (Rs.6,000/- x 12
x 18 x 60%).
46. As per Ex.P.7 Wound Certificate and evidence of
P.W.1 and P.W.3, the Petitioner had sustained grievous injury,
i.e., amputation of left leg knee level and his leg amputed on the
accidental spot itself. The Petitioner was in the Hospital as an
inpatient from 24.06.2014 to 17.07.2014, i.e., for 24 days. Due
to the said injury, the Petitioner could have definitely suffered a
lot of pain and agony. Considering the said aspects, it is just,
proper and necessary to award a sum of Rupees 1,00,000/-
towards pain and suffering.
47. As it is already observed that, the age of the Petitioner
was 19 years. He has to lead remaining his entire life with 60%
permanent physical and functional disability, which comes in the
way of enjoyment of life. Therefore, it is just, proper and
necessary to award a sum of Rupees 1,00,000/- towards loss of
amenities of life to the Petitioner.
SCCH-7 45 MVC.No.423/2015
C/w MVC No.532/2015
48. It is clearly stated by the Petitioner in his
examination-in-chief that, he is a bachelor. At the time of
accident, the Petitioner was 19 years old. In the said road traffic
accident, the Petitioner had lost his left leg knee level. Further, it
is already come to the conclusion that, due to the accidental
injury, the Petitioner is suffering from permanent and physical
disability of 60% to the whole body. By considering the same,
this Tribunal feels that, it is just, proper and necessary to award
a sum of Rupees 20,000/- as compensation towards loss of
marriage prospects.
49. The Petitioner had sustained grievous injury and he
was in the Hospital as an inpatient for 24 days and he could not
do any work at least for 4 months and thereby, he deprived the
income. Therefore, at the rate of Rupees 6,000/- per month, a
sum of Rupees 24,000/- (Rupees 6,000/- X 4 months) is
awarded towards loss of income during the laid up period.
50. The P.W.1 has stated that, he visited the Doctors by
engaging a taxi the fare will be Rupees 3,000/- per visit and as
on today, he has spent Rupees 1,00,000/- towards medical,
conveyance and nourishment expenses. But, in this regard, the
Petitioner has only produced Ex.P.10 Medical Bills 27 in
numbers, which is amounting of Rupees 7,485/- and Ex.P.11
Medical Prescriptions 3 in numbers. The Petitioner has taken
treatment at Victoria Hospital, wherein, he was taken treatment
as an inpatient from 24.06.2014 to 17.07.2014, i.e., for 24 days.
Considering the nature of the injury and line of treatment given
SCCH-7 46 MVC.No.423/2015
C/w MVC No.532/2015
to the Petitioner, 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 7,485/- to the
Petitioner.
51. The P.W.1 has stated that, the doctors have advised
him to use artificial limb (Prosthesis) to his amputed left lower
limb and the cost of procedure is around Rupees 3,00,000/- in
private Hospital. In this regard, the Petitioner has produced
Ex.P.15 Estimation in respect of Artificial Limb, which disclosed
that, the cost of the Prosthesis is Rupees 4,40,480/-. The P.W.3
has stated that, the Petitioner has advised to wear an Artificial
leg (Transfemoral Prosthesis) which is synthetic, fiber glass resin
make, modular imported light weight, computed designed
Aesthetic, cosmetically, socially, psychologically acceptable,
durable, friendly and complications free, which is said to cost
about Rupees 4,40,000/- as per the quotation. It is clearly
mentioned in Ex.P.9 Discharge Summary about traumatic total
amputation of the left leg of knee level, which disclosed about the
loss of left leg knee level. But, based on the same, it cannot be
awarded Rupees 4,40,480/- to the Petitioner towards artificial
limb and future medical expenses, as, the P.W.1 in his cross-
examination has clearly admitted that, Victoria Hospital has
provided artificial limb to him. Further, the P.W.3 in his cross-
examination has clearly admitted that, in their Hospital as
sponsored by Bhagawan Mahaveer Association, their Hospital
Authority give artificial Jaipur foot to the required patient and
the Petitioner has already having artificial leg. However, it is
SCCH-7 47 MVC.No.423/2015
C/w MVC No.532/2015
voluntarily stated by the P.W.1 in his cross-examination that, the
said artificial limb provided by the Victoria Hospital is not
comfortable to his leg and when he fixed it to his limb, he gets
pain and it is more weight. By considering the nature of injury,
i.e., amputation of left leg knee level, the evidence of P.W.1 and
P.W.3 and the age and status of the Petitioner, this Tribunal feels
that, it is just, proper and necessary to award future medical
expenses of Rupees 1,00,000/- to the Petitioner. Hence, the
Petitioner is entitled for compensation of Rupees 1,00,000/-
towards future medical expenses.
52. As the Petitioner was taken treatment as an inpatient
for 24 days, it is necessary to award a sum of Rupees 5,000/-
towards conveyance charges, Rupees 5,000/- towards attendant
charges and Rupees 10,000/- towards food, nourishment and
diet charges etc.,
53. In this way, the Petitioner is entitled for the following
amount of compensation:-
Sl. No. Compensation heads Compensation amount
Loss of future income
1. Rs. 7,77,600-00
arising out of 60% Disability
2. Pain and sufferings Rs. 1,00,000-00
3. Loss of amenities of life Rs. 1,00,000-00
Loss of income during laid
4. Rs. 24,000-00
up period
5. Actual medical expenses Rs. 7,485-00
6. Future medical expenses Rs. 1,00,000-00
7. Marriage Prospects Rs. 20,000-00
8. Conveyance Rs. 5,000-00
SCCH-7 48 MVC.No.423/2015
C/w MVC No.532/2015
9. Attendant Charges Rs. 5,000-00
Food, Nourishment &
10. Rs. 10,000-00
Diet charges
TOTAL Rs. 11,49,085-00
54. In all, the Petitioner is entitled for total compensation
of Rupees 11,49,085/- along with interest at the rate of 6% per
annum on the above said sum (excluding future medical
expenses of Rupees 1,00,000/-) from the date of petition till
payment.
55. While answering Issue No.1, this Tribunal has already
come to the conclusion that, due to very high speed, rash and
negligent manner of driving of the offending Tractor bearing
Registration No.KA-42-T-3214 by its driver itself, the said road
traffic accident was taken place and the offending Tractor and
Trailer as well as its driver are very much involved in the said
road traffic accident and there was no negligence on the part of
the Petitioner in M.V.C.No.532/2015 in riding the Motor Cycle
bearing Registration No.KA-09-K-6142 and in the said road
traffic accident, the Petitioner in M.V.C.No.532/2015 had lost his
left leg up to knee level and the Petitioner in M.V.C.No.423/2015
had sustained six simple injuries. The Petitioners in the cause
title of the petitions have clearly mentioned that, the Respondent
No.1 is an insurer of the offending Tractor bearing Registration
No.KA-42-T-3214 and Trailer bearing Registration No.KA-42-T-
3215 and its Policy No.1-2R56T1MP400, Policy No.87662599 and
period of insurance from 09.05.2014 to 08.05.2014. The
SCCH-7 49 MVC.No.423/2015
C/w MVC No.532/2015
Respondent No.1 in its written statement has clearly stated that,
it has issued Insurance Policy No.1-2R5T1M P400 87662599 for
the period from 09.05.2014 to 08.05.2015 in respect of the
agriculture Tractor and Trailer bearing Registration No.KA-42-T-
3214-3215 in favour of the Respondent No.2 Sri. Devalingaiah.
The Respondent No.2 in his written statement has also clearly
stated that, he is the owner of the Tractor bearing Registration
No.KA-42-T-3214 and Trailer bearing Registration No.KA-42-T-
3215 and the said vehicle are covered under the Insurance Policy
No.1-2R56TIM P400, Policy No.876623599, valid from
09.05.2014 to 08.05.2015 midnight, is insured with the
Respondent No.1 and the policy was in force at the time of the
alleged accident. 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 Tractor
bearing Registration No.KA-42-T-3214 and Trailer bearing
Registration No.KA-42-T-3215 and its insurance policy was valid,
which covers the date of accident. There is no allegation leveled
as against the driver of the offending Tractor and Trailer in
Ex.P.8 Charge Sheet that, at the time of accident, he was not
having a valid and effective driving licence to drive such class of
offending vehicle. 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 Respondent No.2 being
the R.C. Owner of the offending Tractor bearing Registration
No.KA-42-T-3214 and Trailer bearing Registration No.KA-42-T-
3215, are jointly and severally liable to pay the above said
SCCH-7 50 MVC.No.423/2015
C/w MVC No.532/2015
compensation and interest to both the Petitioners. 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 Petitioners are applicable to the
present facts and circumstances of the case on hand only to
some extent. Hence, Issue No.2 in M.V.C.No.423/2015 and
M.V.C.No.532/2015 are answered accordingly.
56. ISSUE NO.3 IN BOTH THE CASES :- For the
aforesaid reasons, I proceed to pass the following;
ORDER
The petitions filed by the Petitioners in M.V.C.No.423/2015 and M.V.C.No.532/2015 under Section 166 of the Motor Vehicles Act, 1989, are hereby partly allowed with costs.
The Petitioner in M.V.C.No.423/2015 is entitled for global compensation of Rupees 50,000/- with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
The Petitioner in M.V.C.No.532/2015 is entitled for compensation of Rupees SCCH-7 51 MVC.No.423/2015 C/w MVC No.532/2015 11,49,085/- with interest at the rate of 6% p.a. 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, in both the cases.
In the event of deposit of
compensation and interest in
M.V.C.No.423/2015, the entire amount relating to the Petitioner in M.V.C.No.423/2015 shall be released in his favour through account payee cheque, on proper identification.
In the event of deposit of
compensation and interest in
M.V.C.No.532/2015, 50% relating to the Petitioner in M.V.C.No.532/2015 shall be released in his favour through account payee cheque, on proper identification.
Remaining 50% amount relating to the Petitioner in M.V.C.No.532/2015 shall be kept in F.D. in his name in any SCCH-7 52 MVC.No.423/2015 C/w MVC No.532/2015 nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/- in each case.
Original copy of the Judgment shall be kept in M.V.C.No.423/2015 and the copy of the same shall be kept in M.V.C.No.532/2015.
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 1st day of January, 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 PETITIONERS :-
P.W.1 : Prakash
P.W.2 : Ramdasa Naik
P.W.3 : Dr. S. Ramachandra
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Mahazar
SCCH-7 53 MVC.No.423/2015
C/w MVC No.532/2015
Ex.P.4 : True copy of Seizure Mahazar
Ex.P.5 : True copy of P.F.
Ex.P.6 : True copy of IMV Report
Ex.P.7 : True copy of Wound Certificate
Ex.P.8 : True copy of Charge Sheet
Ex.P.9 : Discharge Summary
Ex.P.10 : Medical Bills (27 in nos.)
Ex.P.11 : Medical prescriptions (3 in nos.)
Ex.P.12 : Photographs (3 in nos.)
Ex.P.13 : CD relating to Ex.P.12 Photographs
Ex.P.14 : X-ray film
Ex.P.15 : Estimation in respect of Artificial Limb
Ex.P.16 : Notarised xerox copy of S.S.L.C. Marks
Card relating to Prakas. V. Ex.P.17 : Notarised xerox copy of I PUC Marks Card relating to Prakas. V. Ex.P.18 : Notarised xerox copy of Election Identity Card relating to Prakash. V. Ex.P.19 : True Copy of Wound Certificate Ex.P.20 : Notarized xerox copy of Election Identity Card relating to Ramdas Naik. K. V. Ex.P.21 : Outpatient Book Ex.P.22 : Inpatient Record
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.