Bangalore District Court
Sharmila S vs Selvaraj P on 10 April, 2024
KABC020130662020
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 10th DAY OF APRIL - 2024
PRESENT: Sri. Aalok. A.N
(B.B.A. LL.B),
XXI ADDL. SCJ & ACMM
MEMBER - MACT, BENGALURU.
MVC. No.2760/2020
Petitioner : Kumari. Sharmila. S,
D/o Suresh,
Aged about 18 years,
No.114, 15th cross,
Bhuvaneshwari Nagar,
Magadi Road,
Bengaluru-560023.
(By Advocate: Sri. K.N. Channappa)
v/s
Respondent/s : 1. Selvaraj. P,
S/o Pakinathan,
No.6, 4th Main,
Srikanteshwara
Kidirenahalli,
Bidarahalli,
BSK 2nd Stage,
SCCH-23 2 MVC-2760/2020
Bengaluru-560070.
(Exparte)
2. TATA AIG Gen.Ins.Co.Ltd.,
Near Empire Hotel,
Jambukeshwar Arcade,
No.69, Millers Road,
Bengaluru-560051.
(Policy No.017055610200
valid from 26.06.2019 to 25.06.2024)
(By Advocate: Sri. K.M. Ravi)
JUDGMENT
This claim petition is filed under section 166 of the M.V. Act, seeking compensation for the injuries sustained in a road traffic accident.
2. Brief case of the petitioner in the nutshell:
It is the case of the petitioner that on ill fated day i.e., on 26.12.2019 the petitioner was traveling as pillion rider in a motorcycle bearing Reg.No.KA-05-KU-0275 on Kanakapura -
Bengaluru main road, when they reached near Somanahalli Lake at about 3.20 p.m, the rider of the motorcycle drove the same in a rash and negligent manner and due to the over speed at the turn, he lost control due to which both were thrown out on the road along with vehicle as a result of which the petitioner had sustained grievous injuries all over the body. It is further submitted that, soon after the accident she was shifted to SCCH-23 3 MVC-2760/2020 Community Health Care, Kaggalipura and after first treatment she was shifted to NIMHANS Hospital and later shifted to M.S.Ramaiah Hospital, Benglauru, wherein she took treatment as inpatient and undergone several examinations and further she was discharged with an advice to take regular follow-up treatment. It is specifically urged that she has spent more than Rs.5 lakhs towards medical and other incidental expenses. It is specifically urged that she is student and due to the said accident she could not concentrate on her studies and unable to attend the classes regularly, due to which petitioner has suffered mentally, physically and emotionally. Further the accidental injuries have caused dis-figuration and permanent disability to the petitioner. It is further urged that the accident happened because of rash and negligent act of the rider of the motorcycle. Further the respondent No.1 and 2 being the owner and insurer of the motorcycle bearing Reg.No.KA-05-KU-0275 are jointly and severally liable to pay compensation, as such prayed to grant a compensation amount.
3. Notice was duly served to respondent No.1, the respondent No.1 did not appear before this Tribunal. Hence he was placed exparte.
4. After service of notice respondent No.2 spurred in rush to the Court by filing written statement rather objections to the main petition contending that the petition itself is not maintainable either law or on facts. The respondent No.2 SCCH-23 4 MVC-2760/2020 admitting the issuance of insurance policy in respect of motorcycle bearing Reg.No.KA-05-KU-0275. However the liability if any is pleaded to be subject to the terms & conditions of the policy. This respondent specifically and empathically denied the occurrence, mode and manner of accident and also involvement of the vehicle in the accident. It is specifically contended that, as per MLC Extract of M.S.Ramaiah Hospital wherein it is mentioned as Fall from two wheeler, hit by truck, hence it is denied the manner and involvement of the vehicle in the accident. Without prejudice to the said contention it is averred that the rider of the motorcycle was aged about 17 years and was not having driving licence to drive the insured vehcile at the time of accident. Despite knowing the said fact the owner thereof had handed over its possession to such a driver. Further the respondent No.2 has contended that, the owner and the concerned police have not complied the mandatory Section 134(c), 158(6), 149(2), 180 and 181 of M.V.Act. Negligence on the part of the rider of its insured vehicle is denied by this respondent. Per contra it is alleged that the accident has taken place due to the negligence of the petitioner herself. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to indemnify him. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
SCCH-23 5 MVC-2760/20205. On the basis of above pleadings the following issues were framed :
ISSUES
1) Whether the Petitioner proves that she met with a Road Traffic accident on 26.12.2019 at about 3.20 p.m, near Somanahalli village, Uttarahalli Hobli, Bengaluru City and sustained grievous injuries due to the rash and negligent riding of the Honda Activa scooter bearing Reg.No.KA-05-KU-0275 ?
2) Whether the petitioner proves that she is entitled to the compensation amount claimed ? If so from whom and to what extent ?
3) What order or award ?
6. The petitioner examined herself as PW.1. Ex's.P1 to 13 were marked on her behalf. The MRO of M.S. Ramaiah Hospital was examined as PW.2. Ex's.P14 to 17 were marked through this witness. Further the MRT of Supra Hospital was examined as PW.3. Ex's.P18 & 19 were marked through this witness. Dr.Girish. G, Assistant Professor, Department of Maxillo facial Surgery, Sanjay Gandhi Hospital, Benglauru was examined as PW.4. Ex's.P20 & 21 were marked through him. In order to prove the defence, respondent No.2 examined the Manager, Legal Claims of respondent No.2 insurance company as RW.1 and through him got marked Ex.R.1 to 4 documents.
SCCH-23 6 MVC-2760/20207. Heard erudite counsel for the petitioner and respondent No.2 counsel on merits. Perused the entire materials placed on record.
8. This tribunal answers to the above issues are as follows :-
Issue No.1 : In the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following :
REASONS
9. ISSUE NO.1: The petitioner has knocked the doors of justice with a relief to grant a compensation of an amount to the tune of Rs.10 lakhs for the injuries sustained in the RTA. The case of the petitioner lies an narrow compass as to claiming of compensation amount for injuries sustained by her in a Road Traffic Accident. Before dwelling into analyzing the disputed facts in issue it is relevant to have the birds eye view of the case of petitioner in a nutshell.
10. It is the case of petitioner that, on 26.12.2019 the petitioner was traveling as pillion rider in a motorcycle bearing Reg.No.KA-05-KU-0275 on Kanakapura - Bengaluru main road, when they reached near Somanahalli Lake at about 3.20 p.m, the rider of the motorcycle drove the same in a rash and negligent manner and due to the over speed at the turn, he lost control due to which both were thrown out on the road along with vehicle as a result of which the petitioner had sustained SCCH-23 7 MVC-2760/2020 grievous injuries all over the body. It is further submitted that, soon after the accident she was shifted to Community Health Care, Kaggalipura and after first treatment she was shifted to NIMHANS Hospital and later shifted to M.S.Ramaiah Hospital, Benglauru, wherein she took treatment as inpatient and undergone several examinations and further she was discharged with an advice to take regular follow-up treatment. It is specifically urged that she has spent more than Rs.5 lakhs towards medical and other incidental expenses. It is specifically urged that she is student and due to the said accident she could not concentrate on her studies and unable to attend the classes regularly, due to which petitioner has suffered mentally, physically and emotionally. Further the accidental injuries have caused disfiguration and permanent disability to the petitioner. It is further urged that the accident happened because of rash and negligent act of the rider of the motorcycle. Further the respondent No.1 and 2 being the owner and insurer of the motorcycle bearing Reg.No.KA-05-KU-0275 are jointly & severally liable to pay compensation, as such prayed to grant a compensation amount.
11. In support of case of petitioner herself stepped into the witness box and filed her affidavit-in-lieu of oral examination- in-chief as PW1 and got marked Ex.P1 to Ex.P13 documents. The MRO of M.S. Ramaiah Hospital was examined as PW.2. Ex's.P14 to 17 were marked through this witness. Further the MRT of Supra Hospital was examined as PW.3. Ex'sP.18 and 19 SCCH-23 8 MVC-2760/2020 were marked through him. Added more the doctor who was assessed the Maxillofacial disability is examined as PW.4 and through him Ex's.P20 & 21 are marked. In order to falsify the case of the petitioner and to substantiate the defence of the respondent no.2, their counsel had cross-examined PW1 to PW.4 at length.
12. Repelling to the contentions urged by the petitioner, the respondent No.2 had attacked the case of the petitioner on various prisms known to fact and law. The first and foremost contention urged by the respondent No.2 is that, insured vehicle was not at all involved in the accident and there is a delay of 9 days in setting criminal law into motion and that delay is fatal to the case of the petitioner. Further urged that there is no negligence on the part of the rider of the insured vehicle hence prayed to dismiss the petition. In support of these contentions the respondent No.2 got examined Manager, Legal Claims of respondent No.2 company is examined as RW.1 and Ex.R1 to 4 are marked. In order to falsify the defence of the respondent No.2 and to substantiate the case of the petitioner the petitioner counsel has cross examined the RW.1 at length.
13. On marshaling of factual matrix, on dissection of evidence placed on record and after hearing on erudite counsel appearing for combating parties, this Tribunal opines that this issue is pregmented with inner issues such as :
SCCH-23 9 MVC-2760/20201) Whether the delay of 9 days in filing the FIS is fatal to the case of the petitioner ?
2) Involvement of the vehicle in the accident?
3) Whether there is a rash and negligent act on the part of rider of the insured vehicle ?
14. Now let me unfurl each of the contention urged by the rival parties in the light of oral and documentary proof. It is the specific contention of the petitioner that, she has sustained grievous injuries in the RTA on 26.12.2019 at about 3.20 p.m. The Criminal law was set into motion on 04.01.2020 at about 3.00 p.m, which is reflected in Ex.P.2 FIS. It could be borne out from the FIS itself that, injured was taken to different hospital for treatment as such there was a delay in lodging FIS for 9 days. It could be borne out from the medical records itself discloses that injured is very severely injured in RTA. Further from the contents of Ex.P.2 itself clearly forthcoming that soon after the accident she was shifted to NIMHANS Bengaluru and thereafter to Sai Ambica Hospital and then to M.S. Ramaiah Hospital. The contents of Ex.P.2 discloses that criminal law was set into motion when the petitioner was taking treatment in M.S.Ramaiah Hospital. In order to explain the delay the petitioner has made an endevour to summon the MRO of Sai Ambica Hospital as PW.3. Through him Ex.P.18 & 19 were marked. On close perusal of the same it reflects that the petitioner was taken to Sai Ambica hospital on 27.12.2019 at SCCH-23 10 MVC-2760/2020 9.45 p.m. The discharge summary further discloses that petitioner had sustained injury on 26.12.2019 at 3.20 p.m, when she was traveling as a pillion rider in a two wheeler. The said discharge summary itself discloses that initially the petitioner was taken to NIMHANS and after taking treatment for a day and then shifted to Sai Ambica Hospital. This document being the earliest of the documents, which is maintained by the hospital authorities has to be trusted without there being any contra evidence.
15. Added more the petitioner has also got summoned the MRD of M.S.Ramaiah Hospital and examined as PW.2 and through him ExP.14 to 17 were marked. Ex.P.15 being the MLC Extract discloses about the date of accident and manner of accident. This court will not loose sight of the fact the criminal law was set in to motion the petitioner has taken treatment at M.S.Ramaiah Hospital. Learned counsel for the respondent No.2 tried to interrupt the contents of Ex.P.15 stating that it is a case of hit by truck to the two wheeler. This court gave anxious consideration to the contents of Ex.P.15, on close perusal of the same it reflects that the two wheeler got skidded. When such being the case, this court cannot interrupt the contents of Ex.P.15 as otherwise than its grammatical meaning.
16. Further medical records discloses petitioner had taken treatment for facial injuries and head injury. When the petitioner is fighting for her life, the relatives of the petitioner SCCH-23 11 MVC-2760/2020 cannot be expected to set criminal law in motion. The predominant responsibility of the family of the injured will be saving the kith and kin's life rather fighting for justice. When such being the case this court cannot found fault with the mere delay of 9 days in lodging FIR. In this regard it is relevant to rely on the decision in Ravi v. Badrinarayan and others reported in AIR 2011 SC 1226, wherein the Hon'ble Aoex Court has observed as hereunder :
"The purpose of lodging the FIR in motor accident cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if there is delay, the same deserve to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.
If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent SCCH-23 12 MVC-2760/2020 persons then even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground."
(Emphasis supplied by me).
Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. The ratio decidendi laid down by Hon'ble Apex Court is aptly applicable to the facts of the instant case. The petitioner had explained the delay caused. The petitioner clearly demonstrated as to the involvement of the insured vehicle in the accident.
17. Though the respondent No.2 contended that, the insured vehicle is not at all involved in the accident but in order to substantiate the same absolutely no materials placed on record by respondent No.2. Mere self serving and self proclaimed statement is not trump card for success of the case of respondent No.2. Wherefore in the absence of any cogent evidence which could rebut the assertions made by PW-1 on SCCH-23 13 MVC-2760/2020 oath which is supported by Ex.P-6 which is the charge sheet and the documents annexed therewith, this court should not have any impediment to conclude that the said documents prima-facie suffice to hold that accident, occurred due to rash and actionable negligence on the part of the driver of the of the insured vehicle. The view taken by this Court that the police records are prima-facie proof in support of the case of the petitioner, is supported by the decision rendered in Kishan Gopal and another Vs. Lala and others reported in 2013 (4) T.A.C 5 (S.C.), wherein the Hon'ble Apex Court has categorically held thus:
In view of the aforesaid facts, the Tribunal should have considered both oral and documentary evidence referred to supra and appreciated the same in the proper perspective and recorded the finding on the contentious issue No. 1 & 2 in the affirmative. But it has recorded the finding in the negative on the above issues by adverting to certain statements of evidence of AW-1 and referring to certain alleged discrepancies in the FIR without appreciating entire evidence of AW- 1 and AW-2 on record properly and also not assigned valid reasons in not accepting their testimony. The Tribunal should have taken into consideration the pleadings of the parties and legal evidence on record in its entirety and held that the accident took place on 19.07.1992, due to which Tikaram sustained SCCH-23 14 MVC-2760/2020 grievous injuries and succumbed to the same and the case was registered by the Uniara Police Station under Sections 279 and 304-A, IPC read with Sections 133 and 181 of the M.V. Act against the first and second respondents. The registration of FIR and filing of the charge-sheet against respondent Nos.1 & 2 are not in dispute, therefore, the Tribunal should have no option but to accept the entire evidence on record and recorded the finding on the contentious issue Nos.1 and 2 in favour of the appellants.
(Emphasis supplied by me)
18. Further the respondent.No.2 in order to neutralize the case of the petitioner has relied on a decision of the Hon'ble High Court of Karnataka reported in 2017 ACJ 1226 in the case D.Govardhan V/s Satish Poojary and also in MFA 8145/2012 in the case of Ganesh Achar V/s United India Insurance Co.Ltd.The principles reiterated in the above decision would have lent helping hand to the case of the respondent No.2, if respondent.No.2 would have produced any materials to show that, insured vehicle is not involved in the accident. It is also relevant to note that even Ex.P.4 IMV Reprot discloses the damages to the two wheeler. It is also not out of box to mention that, respondent No.1 has not appeared before the Tribunal and did not choose to file any written statement denying the factum of accident. If the respondent No.1 is really not involved SCCH-23 15 MVC-2760/2020 in the accident than, he would have definitely resisted the case of the petitioner herein.
19. The next aspect to be considered with regard to the factum of negligence. The negligence has to be proved in MACT cases as the any other fact in issue. Before dwelling into analyzing the factum of alleged negligence it is relevant to have the conceptual aspects pertaining to factum of negligence. There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:
Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff. Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff.
The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her.
Damages: At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant's act.SCCH-23 16 MVC-2760/2020
Negligence means a breach of duty caused by omission to do something which has reasonable man guide by those consideration which ordinarily regulated conduct of human affairs would do which a prudent man would not do. In common prevalence negligence connoted to the want of proper care and the rashness conveys the idea of recklessness or the doing of an act without due consideration.
20. Reverting back to the factual matrix, the document which sheds light on the factum of rash and negligence is Ex.P.3 being the Spot Mahazar. This court gave anxious consideration on astuteness to the contents of the above said document. On conspectus reading of Ex.P.3 it reflects that the accident happened on the lake bund of Somenahalli in the main road of Kanakapura to Benglauru at the left side of the road. The contents of ExP.3 discloses that the road is 24 feet in width. It is further forthcoming from that said document that there is a down hill and a curve in the said road. On close perusal of the same it reflects that, the accident happend beause of the rashness and negligence of motorcycle rider. Further the contents of the Ex.P.3 is fortified by the Ex.P.4 IMV Report and IMV inspector opined that the accident occured was not due to any mechanical defects of the vehicle. If the rider of the motorcycle bearing Reg.No.KA-05-KU-0275 was coming in a normal speed then he would certainly avoided the accident. Above all even the chargesheet was also filed as against the SCCH-23 17 MVC-2760/2020 rider of motorcycle for the offences punishable u/s 279, 338, 180 and 181 of IMV Act. This court is aware of the fact that chargesheet is not a conclusive proof to come to conclusion with regard to rash and negligent act. But having regard to the Ex.P.3 which was read in consonance with the Ex.P.6 Chargesheet it is crystal clear that there is an rash and negligent act of the rider of the vehicle.
21. It is necessary to reassert that in a claim for compensation filed under Section 166 of Motor Vehicles Act, 1988, the claimant is expected to prove the incident on basis of principle of preponderance of probabilities and the view taken by this Court is fortified by the decision rendered by the Hon'ble Supreme Court in Kusum and others V/s Satbir and others which is reported in 2011 SAR (CIVIL) 319. Further the Hon'ble Supreme Court in case of Bimla Devi and others v. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 530 has observed that, it is necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. Further the Hon'ble High Court of Karnataka in National Insurance Co. Ltd. Vs. Krishnappa and another reported in 2001 ACJ 1105, where the Hon'ble High Court of Karnataka considering the fact that the rider of the offending vehicle was not examined to prove any contributory negligence on the part of SCCH-23 18 MVC-2760/2020 scooterist held that the accident had occurred due to rash or negligent driving by the rider of the offending van. Even here in this case the rider of the motorcycle is not examined to show that there was no negligence on his part and even otherwise the IO, as already observed, has clearly opined that the accident occurred only due to the fault of the rider of the motorcycle and he was charge sheeted.
22. Though PW.1 was cross examined at length by respondent No.2 counsel but nothing fatal was elicited so as to distrust the petitioner's version in his chief-examination. Even the chargesheet as per Ex.P.6 is also filed as against the rider of the motorcycle. When such the case absolutely there is no impediment in considering the version of the petitioner herein. Further the respondent.No.2 has also failed to examine the rider of the insured vehicle. When such is the case, the version of the petitioner has to be taken into consideration. The petitioner has successfully demonstrated there is a negligence on the part of the rider of the motorcycle. Consequently this tribunal hold that the accident is proved to have been caused due to the actionable negligence of the rider of the motorcycle. On assessing entire evidence the light of oral and documentary proof, the preponderance of probability tilts infavour of petitioner herein. Hence, this Tribunal answers Issue No.1 'In the Affirmative'.
23. ISSUE NO.2 : As already held herein above, the petitioner proved that she has sustained injuries in RTA which SCCH-23 19 MVC-2760/2020 is caused by the vehicle belonging to respondent No.1 and insured with the respondent no.2. Hence the petitioner is entitle for compensation. This Court has already held Issue No.1 in the affirmative which makes it more than obvious that the petitioner is entitled for compensation. Needless to state the quantum of compensation which is awarded has to be proportionate to the nature of the injuries and the compensation has to be awarded by keeping in mind the pecuniary damages and non-pecuniary damages suffered by the injured-claimant. By pecuniary damages this Court is referring to the actual loss sustained by the petitioner, which can be determined in terms of money, by taking into account the oral or documentary evidence. Whereas for non-pecuniary damages this Court is referring to the losses that the claimant has though suffered, but will not be able to prove for the reason that it can neither be calculated in terms of the money nor can it be proved leading documentary evidence. Perhaps the non- pecuniary damages can be figured out by looking into the facts of each case by taking into account the nature of injuries and the aftermath. It is required to be reminded to oneself that compensation in a case arising out of injury can never be granted on mathematical precision and invariably a good amount of guesswork is involved while determining the compensation in such cases.
SCCH-23 20 MVC-2760/202024. Perhaps unlike in a fatal case, in a case involving bodily injury the victim is left to suffer throughout her life; and hence it becomes the bounden duty of the tribunal to award compensation to a victim of permanent disability so as to bring in sustainability and also to ensure that victim is not pushed to poverty.
25. This issues revolves round the sphere and ambit as to the quantum of compensation. The petitioner has got exhibited her Aadhar card at Ex.P8 wherein her date of birth is reflected as 24.04.1999. The accident occurred on 11.11.2002. This indicates that she was aged 17 years 1 month 15 days on the date of accident.
26. In order to demonstrate the pecuniary loss suffered by petitioner, herself is examined as PW.1 and she deposed that immediately after the accident, she was taken to Community Health Centre wherein first aid treatment taken thereafter she was shifted to NIMHANS Hospital, Bengaluru wherein she took treatment as an inpatient from 26.12.2019 to 27.12.2019 (2 days) and later to Sai Ambica Hospital, wherein she took treatment as an inpatient from 27.12.2019 to 02.01.2020 (7 days) and later she was shifted to M.S.Ramaiah Hospital wherein she took treatment as an inpatient from 03.01.2020 to 18.01.2020 (15 days) and during the course of treatment, the petitioner underwent surgery. The petitioner has supported the said contention by producing Ex.P.5 which is the wound certificate and Ex.P.7 discharge summaries, medical bills and SCCH-23 21 MVC-2760/2020 prescriptions ; and the petitioner has also examined PW.4 who has clearly deposed that indeed the minor petitioner underwent treatment as stated by the PW.1. Further the learned counsel for the petitioner has asserted that the petitioner has spent substantial amount towards the treatment and incidental charges and has produced medical bills in support of the same. Further in the wound certificate, it is clearly mentioned that the injuries sustained by the petitioner are grievous in nature. By keeping these facts in mind the compensation has to be determined.
27. While determining the compensation this court has to look into the pain and sufferings, medical expenses, diet, food, nourishment, attendant and conveyance charges and loss of amenities and enjoyment of life that the minor petitioner has suffered, which are discussed herein below.
28. TOWARDS PERMANENT DISABILITY: The petitioner has alleged that due to injuries sustained in the accident she has become permanently disabled and she is not in a position to do the activities which she used to do prior to the accident. In order to establish that minor petitioner has suffered physical disability, the petitioner has got examined Dr.Girish. G, Assistant Professor, Department of Maxillofacial Surgeon, as PW.4. On clinical examination he found following difficulties :
a) Sutured laceration wound over forehead
b) Bilateral infraorbital step deformity SCCH-23 22 MVC-2760/2020
c) Tenderness over left body of mandible
d) Restricted mouth opening
e) Bilateral nasal bone tenderness and crepitus
f) Deranged occlusion
29. The PW-4 stated that, the petitioner has sustained injuries of Bilateral Lefort II Fracture, FNOE complex fracture and Left body of mandible fracture and the petitioner was admitted in NIMHANS Hospital and M.S. Ramaiah Hospital and during the course of hospital she was managed with craniotomy with dural and ACF base repair neurosurgically and ORIF with miniplates and screws of the above said facial fractures. The PW-4 has assessed the disability of the petitioner and also gave evidence with respect to the disability of 40% towards fracture of 4 sites, motor disability of jaw, paresthesi of bilateral infrarbital nerve and impairment of mouth opening and 13% to the whole body disability.
30. It is specifically urged by the petitioner that because of the accident there is a loss future earning and she has become permanently disabled. Admittedly the petitioner was a student at the time of accident. In her chief examination itself she has noted that she was student and due to the accidental injuries she unable to participate in co.curricular and sports activities and also undergone mental agony.
31. The compensation awarded should enable the child to acquire something or to develop life style which will offset to SCCH-23 23 MVC-2760/2020 some extent, the inconvenience or discomfort arising out of the disability. At this point, this Tribunal would like to rely on the following judgment reported in (2011) 1 SCC 343 in the case of Rajkumar V/s. Ajaykumar and another, wherein the Hon'ble Supreme Court held as follows;
Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant SCCH-23 24 MVC-2760/2020 could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his SCCH-23 25 MVC-2760/2020 hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
By applying the said precedent to the present case on hand, in this case the petitioner sustained injuries. The discussion made supra makes it crystal clear that, at the time of the accident the petitioner was pursuing II PUC and after the accident she did not continued the education. Further she deposed that she had passed PUC during the covid time. It is further noted that during the covid-19 time the Central / State Government issued circulars and Notifications to Educational institutions with regard to welfare of students. Further she also admitted that she passed PUC during the covid time. When such being the case, it can be concluded that, the petitioner did not suffer that disability as stated by PW4. No doubt having regard to the injuries sustained and the treatment given to the petitioner she has sustained disability to some extent. The age of the petitioner also bears importance having regard to the facts of the instant case on hand. The petitioner is young aged than the recovery rate will be higher. Considering the nature of injuries, line of treatment and on appreciation of the clinical SCCH-23 26 MVC-2760/2020 findings noted by the doctor, the possibility of the fact that the petitioner may be having economical or functional disability to the extent of 11%, cannot be ruled out. Hence, this court is of the opinion that the disability has to be taken upto 11% by considering the avocation and age of the petitioner.
32. The reason why the proof of disability and extent of disability is crucial while determining the compensation payable to petitioner is, the petitioner herein is a minor and as per the principle of law laid down in Mallikarjun v. Divisional Manager, National Insurance Company Limited and another reported in (2014) 14 SCC 396 while assessing the compensation for pain and sufferings, mental and physical shock, hardship, inconvenience and discomforts, etc. and loss of amenities in life on account of permanent disability and other heads. The Hon'ble Supreme Court at para No.12 of the said Judgment has held as under:
"Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick."SCCH-23 27 MVC-2760/2020
As already observed, the petitioner has examined PW.4 who has assessed disability of the petitioner as 13%, but this court considers the disability could be 11% which when compared to the avocation i.e., the petitioner being the student need to carryout her day-to-day activities and other sports. Hence, the disability is considered at 11%. In the result she is entitled for the compensation of Rs.3,00,000/- under this head.
33. TOWARDS MEDICAL EXPENSES: As per the bills marked at Ex.P9, the PW.1 has spent Rs.2,43,458/- towards medical expenses. Nothing worthwhile was elicited during the course of her cross-examination, so as to doubt the genuineness of these bills. Hence the petitioner is entitled for Rs.2,43,458/- which is rounded off to Rs.2,43,500/- towards medical expenses.
34. TOWARDS DISCOMFORT, INCONVENIENCE AND LOSS OF EARNINGS TO THE PARENTS DURING THE PERIOD OF HOSPITALISATION : Looking into the nature of the injuries suffered by the petitioner, a maximum of 4 months would have been required for recovery. Hence the petitioner's parents could not have attended their work for those long period of 4 months. Therefore this Tribunal deems it expedient to take note of loss of income of parents during the course of treatment and rest of the petitioner. The same is quantified at Rs.10,000/- p.m. and a sum of Rs.40,000/- (10,000 X 4) is awarded as compensation SCCH-23 28 MVC-2760/2020 for discomfort, inconvenience and loss of income to the parents during the period of hospitalization of the minor petitioner.
35. ATTENDANT CHARGES, FOOD, NOURISHMENT & TRAVELLING EXPENSES: The period of hospitalization of 24 (15+7+2) days is proved. Thus having regard to the age of the petitioner and also the nature of injuries sustained by her, she unavoidably required the service of an attendant for nursing and care. She must also have been given diet food as suggested by the doctor. For that the petitioner's family members might have spent some amount towards attendant charges, food, nourishment & travelling expenses. Accordingly considering the rate of inflation and rise in the price index, the same is quantified at Rs.1,500/- per day. Hence Rs.36,000/- (24 X 1,500/-) is awarded under this head.
36. FUTURE MEDICAL AND OTHER INCIDENTAL EXPENSES : The PW.4 doctor witness stated that the petitioner has to undergo one more surgery for removal of implants and scar revision under GA. No estimation is produced to show the future medical expenses. But undisputedly petitioner has to undergo surgery for removal of implants, for which she has to necessarily bear certain expenses. Thus she is entitled to Rs.20,000/- towards future medical and other incidental expenses.
SCCH-23 29 MVC-2760/202037. The calculation table stands follows :
1 Permanent disability. : 3,00,000-00 2 Medical expenses : 2,43,500-00 3 Discomfort, inconvenience & loss : 40,000-00 of income to the parents during the period of hospitalization 4 Attendant charges, food, : 36,000-00 nourishment & travelling expenses 5 Future medical and other : 20,000-00 incidental expenses Total 6,39,500-00
38. REGARDING INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% per annum is awarded it would meet the ends of justice.
39. While answering the issue No.1 this Tribunal comes to the conclusion that, accident occurred due to the negligence of the rider of motorcycle bearing registration No.KA-05-KU-0275 The petitioner contended that the respondent No.1 is the owner and the respondent No.2 is the insurer of the said vehicle hence both are jointly and severally liable to compensation. The respondent No.2 admitted the issuance of policy in respect of the offending vehicle. The respondent No.2 contended that at the time of the accident the rider of the motorcycle bearing registration No.KA-05-KU-0275 was not holding driving license SCCH-23 30 MVC-2760/2020 as he was minor at the time of accident, hence it is violation of terms and conditions of the policy as such they are not liable to pay compensation to the petitioner. In support of this contention the official of the respondent No.2 company official is examined as RW.2. In his examination in chief he deposed as per contentions taken by them during the course of written statement. He got marked the authorization letter as per Ex.R1, policy copy as per Ex.R2, true copy of the Notice issued u/s 133 of IMV Act as per Ex.R.3 and reply to the said Notice as per Ex.R.4. In the cross examination he deposed that he is giving evidence based on the police documents and he admitted the issuance of insurance policy and same is valid. The chargesheet has been filed as against the rider of the vehicle. He denied that the respondent No.1 has not violated the any terms and conditions of the policy and he denied that he is deposing falsely. By perusing the charges sheet marked as per Ex.P6 it is clear that the charge sheet is filed against the minor for the offense punishable U/Sec. 279, 338 of IPC, Sec.180 and 181 of MV Act.. The charges are leveled against the owner of the motorcycle i.e., respondent No.1 for giving the motorcycle to his son who is the minor. The respondent No.1 is the owner of the motorcycle and the said motorcycle was driven by the rider who is a minor who does not have DL and he caused this accident. Hence it is clear that the respondent No.1 has violated the terms and conditions of the policy. Further it is clear that the respondent No.1 knowing well that the rider of the motorcycle SCCH-23 31 MVC-2760/2020 was not holding driving license permitted the minor to rider the motorcycle. Hence it is also clear that the respondent No.1 has violated the policy condition.
40. The learned counsel for the petitioner contended that even though there is violation of terms and conditions of the policy the insurance company is liable to pay compensation to the petitioner. It is a trite law that in case of fake/invalid driving license the insurance company has to prove that the owner of the motor vehicle need to establish that the owner was aware of fact that license was fake/invalid and still permitted the driver to drive the vehicle, in that circumstances the insurance company is not liable to pay compensation, if the insurance company failed to prove that even the owner of the vehicle knowing that the driver vehicle was having fake/invalid driving license permitted the driver to drive the vehicle them insurance company is liable to pay compensation to the petitioner. But in the present case on hand the rider without DL was riding the motorcycle and caused this accident and it is not the case of fake/invalid driving license. The rider of the vehicle is none other than the son of the respondent.no.1 than it can be safely concluded that, he consciously had handed over the vehicle to the rider. Further it is pertinent to note that IO has given Notice u/s 133 of IMV Act as per Ex.R.3 and the said notice was replied as per Ex.R.4 wherein the owner of the offending motorcycle has admitted the involvement of the vehicle. He SCCH-23 32 MVC-2760/2020 further replied that at the time of accident the rider by name Jafarson was not having valid DL. Hence it is clear that the respondent No.1 has violated the terms and conditions of the policy. Further it is clear that the respondent No.1 knowing well that the rider of the motorcycle was not holding driving license permitted her son to ride the motorcycle. Hence it is also clear that the respondent No.1 has violated the policy condition.
41. On the other hand the learned counsel for the respondent No.2 relied on the judgment of Hon'ble High Court of Karnataka in M.F.A.No.3297/2019 in the case of Smt.Adilakshmamma and Others Vs., Sri. Raju and other and contended that when the owner knowing that rider of the motorcycle was not holding driving license and handed over his motorcycle to the rider who is not having driving license then the owner is liable to pay compensation to the petitioner. In this case on hand also the respondent No.1 is the owner of the motorcycle and he is knowing well that the rider is not having driving license and permitted the rider to ride his motorcycle and the rider caused this accident, hence the respondent No.2 is not liable to pay compensation to the petitioner, but the respondent No.1 who is the owner of the motorcycle is liable to pay compensation to the petitioner. The said authority relied by the learned counsel for the respondent No.2 is applicable to the present case on hand.
SCCH-23 33 MVC-2760/202042. Further on the same point of law it is also relevant to rely on the judgment in MFA-6154/2019 in the case of Smt. Hemalatha @ Hema @ Hemavathi and others v/s Bajaj Allianz Gen.Ins.Co.Ltd, wherein the Hon'ble High Court of Karnataka after considering the judgment of the Apex Court in (I) Pappu V/s Vinod Kumar Lamba, (ii) Bishan Devi v. Surbakshi Singh
(iii) Shamanna V/s Oriental Ins.Co.Ltd., (iv) Iffco Tokio Gen.Ins.Co.Ltd V/s Geeta Devi (v) National Ins.Co.Ltd., V/s Swarna Singh it clearly distinguished the factum of no DL and fake DL and observed as hereunder :
27. Learned Counsel for the appellants relied on the judgment of the Hon'ble Supreme Court in the case of Swaran Singh's, Pappu's, and Shamanna'scases referred to supra, to contend that, even if there is no driving license the insurer is liable to pay the damages to the claimants and recover the same from the owner of the vehicle. Those judgments referred to the principle of pay and recovery in case of breach of policy condition for disqualification of the driver to hold the license or holding of an invalid driving license. They did not relate to a case of no driving license at all.
28. Learned counsel for the appellants/claimants relied on Bishan Devi's case referred to supra to contend that even in case of no license also, the insurer is liable.
Plain reading of the said judgment shows that in that case it was held that the insurer had failed to prove its defence that vehicle was driven by a person without license. In the present case the defence of the insurer that the offending vehicle was driven by a person having no license and the same is proved. Therefore, the said judgment is not applicable to the facts of the present case.
43. Reverting back to the factual matrix, respondent.No.1 the owner of the vehicle has not contested the petition by filing written statement and adduced evidence. The respondent.no.1 had consciously handed over the vehicle to his son. The said act SCCH-23 34 MVC-2760/2020 of the respondent.No.1 is a clear breach of fundamental breach of policy condition within the meaning of Sec149(2)(a)(ii) of MV Act. The respondent No.1 being the owner of the motorcycle bearing registration No.KA-05-KU-0275 is liable to pay compensation to the petitioner with interest at the rate of 6% p.a from the date of petition. Under such circumstances the insurance company cannot fastened with a liability of pay and recover that there is clear breach of conditions. The respondent No.1 is stated to be the owner of the offending vehicle is vicariously liable to pay the compensation awarded by this Tribunal. Accordingly, I answer the issue No.2 in partly in the affirmative.
44. ISSUE NO.3 : In view of the discussion made supra, this Tribunal proceeds to pass the following :
ORDER The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioner is entitled for compensation of Rs.6,39,500/- with interest at the rate of 6% p.a., from the date of claim petition till realization of the entire award amount.
The respondent No.1 / owner of motorcycle bearing Reg No.KA-05-KU-0275 is liable to pay and directed to deposit the compensation amount SCCH-23 35 MVC-2760/2020 within a period of one month from the date of award.
Out of the above said compensation amount awarded to the petitioner, 80% of the award amount with accrued interest shall be paid to him through NEFT/RTGS by way of E-payment on proper identification and due verification and further 20% of the award amount shall be kept in FD in favour of petitioner in any Nationalized or Scheduled bank for a period of 3 years.
The petition is dismissed against respondent No.2/ Tata AIG Gen. Insurance Company Limited.
Advocate fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by him, then corrected and pronounced by me in the open court on this the 10th day of April - 2024) (Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s:
PW.1 : Kum. Sharmila. S
PW.2 : Sri. Raviprakash. B.G.
PW.3 : Sri. Bipin. H. M
PW.4 : Dr. Girish. G.
SCCH-23 36 MVC-2760/2020
List of documents got marked for the petitioner/s:
Ex.P.1 True copy of FIR
Ex.P.2 True copy of Complaint
Ex.P.3 True copy of Spot Mahazar
Ex.P.4 True copy of IMV report
Ex.P.5 True copy of Wound Certificate
Ex.P.6 True copy of Chargesheet
Ex.P.7 Discharge summaries (3 in Nos)
Ex.P.8 Notarized copy of my Aadhar card
Ex.P.9 65 Medical bills amounting to Rs.2,43,458/- in
total
Ex.P.10 Advance bills (12 in Nos)
Ex.P.11 Prescriptions (29 in Nos)
Ex.P.12 X-ray (1 in No)
Ex.P.13 CT Films (4 in Nos)
Ex.P.14 Authorization letter
Ex.P.15 True copy of the MLC Extract / Accident
Information Register (Original compared and returned) Ex.P.16 In-patient case sheet (1 in No.) Ex.P.17 Out-patient case sheet (1 in No.) Ex.P.18 Authorization letter Ex.P.19 Case sheet Ex.P.20 OPD file Ex.P.21 2-X-ray films List of witnesses examined for the respondent/s:
RW.1 : Sri. Shreyas Bhat SCCH-23 37 MVC-2760/2020 List of documents marked for the respondent/s:
Ex.R1 : Authorization letter Ex.R2 : True copy of insurance policy Ex.R3 : True copy of Notice issued u/s 133 of MV Act Ex.R4 : True copy of Reply to the above said notice. (Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Bengaluru.