Bangalore District Court
In M.V.C.No.1718/2016 vs In M.V.C.No.1718/2016 on 11 September, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this the 11th day of September 2017
PRESENT: SMT. SUJATHA, S. B. COM., LL.B.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C. NOS. 1718/2016 C/w 1719/2016
PETITIONER IN M.V.C.NO.1718/2016
Sri. Venkataramanappa,
S/o Sri. Venkatarayappa,
Age 45 years, Occ: Vegetable Business,
R/o No.213, Kasavaguttahalli,
Hale Paresandra Post,
Chikkaballapura - 562 104.
(By Sri. Suresh.M. Latur, Adv.)
-VS-
RESPONDENTS IN M.V.C.NO.1718/2016:
1.Shankarappa,
S/o Venkataravanappa,
No.234, Varalakonda Village and Post,
Gudibande Taluk,
Chikkaballapura District.
(Owner of Canter Lorry bearing registration No.KA-40-9676)
2. IFFCO TOKIO General Insurance Company Ltd.,
No.41, 2nd Floor, Cristu Comlex,
Lavelle Road, Bengaluru - 1.
SCH-7 2 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
(Insurer of Canter Lorry bearing registration No.KA-40-9676)
(Policy No.1-3SJMMF P400-92904877)
Valid from 22.06.2015 to 21.06.2016)
3. Sri. Santhosh Kumar,
S/o Kalyan Rao,
9-4-129 Polytechnic Road,
Mahabubnagar,
Andhra Pradesh - 509 001.
(Owner of Lorry bearing registration No.AP-28-W-8107)
4. The Manager,
SBI General Insurance Company Ltd.,
V.V. Giri Colony,
Seshadripuram,
Bengaluru - 20.
(Insurer of Lorry bearing registration No.AP-28-W-8107)
(Policy No.0000000001701331-01)
Valid from 22-04-2015 to 21.04.2016)
(R1 - Exparte)
(R2 - By Sri.K.Prakash, Adv.)
(R3 - Exparte)
(R4 - Exparte)
PETITIONER IN M.V.C.NO.1719/2016
Sri. Muniraju,
S/o Sri Doddavenkateshappa,
Age: 33 years, Occ: Cleaner,
R/o Kasavaguttahalli,
Paresandra Post,
Chikkaballapura - 562 104.
(By Sri. Suresh.M. Latur, Adv.)
-VS-
SCH-7 3 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
RESPONDENTS IN M.V.C.NO.1719/2016:
1.Shankarappa,
S/o Venkataravanappa,
No.234, Varalakonda Village and Post,
Gudibande Taluk,
Chikkaballapura District.
(Owner of Canter Lorry bearing registration No.KA-40-9676)
2. IFFCO TOKIO General Insurance Company Ltd.,
No.41, 2nd Floor, Cristu Comlex,
Lavelle Road, Bengaluru - 1.
(Insurer of Canter Lorry bearing registration No.KA-40-9676)
(Policy No.1-3SJMMF P400-92904877)
Valid from 22.06.2015 to 21.06.2016)
3. Sri. Santhosh Kumar,
S/o Kalyan Rao,
9-4-129 Polytechnic Road,
Mahabubnagar,
Andhra Pradesh - 509 001.
(Owner of Lorry bearing registration No.AP-28-W-8107)
4. The Manager,
SBI General Insurance Company Ltd.,
V.V. Giri Colony,
Seshadripuram,
Bengaluru - 20.
(Insurer of Lorry bearing registration No.AP-28-W-8107)
(Policy No.0000000001701331-01)
Valid from 22-04-2015 to 21.04.2016)
(R1 - Exparte)
(R2 - By Sri.K.Prakash, Adv.)
(R3 - Exparte)
SCH-7 4 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
(R4 - Exparte)
JUDGMENT
These two petitions are filed under Section 166 of I.M.V. Act. Since the matter involved in both cases are one and the same, MVC No.1719/2016 is clubbed with MVC 1718/2016 clubbed together as per the order dated 07.11.2016 and MVC No.1718/2016 is considered as main case.
2. The Brief facts of the petitioner's case in M.V.C.No. 1718/2016 is that: He is claiming the compensation of Rupees 15,00,000/- by way of special and general damages on account of injuries, pain, mental agony, loss of earnings present and future physical disablements, loss of amenities, shortenings of expectation of life due to the injuries sustained by him in this accident and medical expenditures incurred thereon. He is a vegetable businessman, on 08.08.2015 evening he purchased a load of vegetable from Chikkaballapura and hired a Canter Lorry bearing registration No.KA-40-9676 and unloaded the same at Bengaluru Market and while he was returning in the same Lorry to the Chikkaballapura at about 12-00 a.m., on N.H.7, Chikkaballapura - Bengaluru Road, near Venkatagiri Kote Lake the said Lorry was driven in high speed with rash and negligent manner. At that time a Lorry bearing registration No.AP-28-W- 8107 which was going ahead in high speed suddenly applied break without giving any signal. Due to which their Canter Lorry SCH-7 5 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 dashed against the Lorry from behind. As a result he sustained grievous injuries. Petitioner stated that immediately after the accident he was admitted to Akash Hospital, Devanahalli, wherein he is still under treatment. So far he has spent about Rupees 1,50,000/- towards his medical and conveyance expenses. Petitioner stated that looking to the nature of injuries he apprehend that he will get the permanent disability and he will be disabled to do his occupation and earn his lively hood. Apart from loss of earnings, he will have to suffer from constant pain and discomforts throughout his life and hence his life has become miserable and dark due to this accident. Petitioner stated that the accident occurred due to rash and negligent driving of the Motor Vehicle involved in the accident. Therefore the Respondents being the owners and insurers of the said vehicles are jointly and severally liable to pay the compensation to him. Under these circumstances, the petitioner in M.V.C. No.1718/2016 prayed to allow the petition.
3. The Brief facts of the petitioner's case in M.V.C.No. 1719/2016 is that: He is claiming compensation of Rupees 15,00,000/- by way of special and general damages on account of injuries, pain, mental agony, loss of earnings present and future physical disablements, loss of amenities, shortenings of expectation of life due to the injuries sustained by him in this accident and medical expenditures incurred thereon. On 08.08.2015 at about 12.00 a.m., he was traveling in a Lorry SCH-7 6 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 bearing registration No.KA-40-9676 as a cleaner, the driver of the Lorry drove the vehicle high speed with rash and negligent manner on N.H.7, Chikkaballapura Road, when he reached near Venkatagiri Kote lake, the driver of Lorry bearing registration No.AP-28-W-8107 which was going ahead suddenly applied break, due to which the Canter Lorry dashed against the Lorry from behind. As a result he sustained grievous injuries. Petitioner stated that immediately after the accident he was shifted to Nimhans Hospital, Bangalore. Later he was treated in Victoria Hospital, Bengaluru, wherein he is still under treatment. So far he has spent about Rupees 60,000/- towards his medical and conveyance expenses. Petitioner stated that looking to the nature of injuries he apprehend that he will get the permanent disability and he will be disabled to do his occupation and earn his lively hood. Apart from loss of earnings, he will have to suffer from constant pain and discomforts throughout his life and hence his life has become miserable and dark due to this accident. Petitioner stated that the accident occurred due to rash and negligent driving of the Motor Vehicle involved in the accident. Therefore the Respondents being the owners and insurers of the said vehicles are jointly and severally liable to pay the compensation to him. Under these circumstances, the petitioner in M.V.C. No.1719/2016 prayed to allow the petition.
SCH-7 7 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
4. In spite of service of Notice, Respondents No.1, 3 and 4 remained absent and they were placed exparte. Respondent No.2 appeared through their Counsel and filed separate objection statements.
5. In the objection statement filed in MVC.No.1718/2016, Respondent No.2 stated that the claim petition is not maintainable either in law or on facts. The Petitioner was gracious passenger in the insured vehicle and he was not covered under policy. The Petitioner has to prove that the driver of Lorry had valid and effective Driving Licence and the said vehicle covered under Insurance Policy. Respondent No.2 stated that insured vehicle was moving slowly and cautiously by following all traffic rules, at that time the driver of Lorry bearing registration No.AP-28-W-8107 driven the same in rash and negligent manner and suddenly applied break without indication and due to his sole negligence the said accident occurred and there is no negligence on the part of driver of insured vehicle. Further Respondent No.2 contended that if it is proved that there is rash and negligent act on the part of driver of insured vehicle in the said accident and drivers of both vehicles are responsible for alleged accident. The liability is to be reduced to the extent of negligence of driver of Lorry. The Respondent No.2 denied all petition averments and prayed to permit them to defend the case on all grounds under Section 170 of IMV Act. The owner of vehicle not complied provisions of Section 134(C) of IMV Act. The jurisdictional policy have also not SCH-7 8 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 complied provisions of Section 158(6) of IMV Act. Respondent No.2 denied age, avocation and income of Petitioner. The Respondent No.2 prayed to permit them to take defence under Section of 147 and 149 of IMV Act. If Petitioner establishes alleged claims and maintainability of petition against them then interest on compensation amount is to be considered at 6% p.a. Under these circumstances Respondent No.2 prayed to dismiss the petition.
6. In M.V.C.No.1719/2016 Respondent No.2 contended that a false complaint has been lodged against insured vehicle after thought by twisting the facts in order to get compensation by misusing judicial process. Respondent No.2 specifically denied the alleged accident occurred in the alleged manner as stated in the petition and involvement of vehicle in the alleged accident. Respondent No.2 stated that, Petitioner was traveling as gracious passenger and he was not covered under policy. Respondent No.2 denied entire petition averments. Respondent No.2 denied age, income, avocation, injuries sustained by the Petitioner and medical expenses. Respondent No.2 denied age, income, avocation, injuries sustained by the Petitioner and medical expenses. Respondent No.2 prayed leave to defend the case under Section 147, 149 and 170 of IMV Act. Respondent No.2 stated that owner of insured vehicle not complied with provisions of Section 134(C) of IMV Act and jurisdictional policy have not SCH-7 9 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 complied the provisions of Section 158(6) of IMV Act. Under these circumstances Respondent No.2 prayed to dismiss the petition.
7. In M.V.C.No.1719/2016 the Respondent No.2 filed additional objection contending that, if the Petitioner proves that he is entitled for compensation the petition is not maintainable before this tribunal and liability of Respondent No.2 is limited as per Workmen compensation Act towards the employees of insured, if the Petitioner proves that he is working as an employee under insured and he suffered alleged accident during the course of out of employment. Since the Petitioner had no Driving Licence who was actually driving the insured vehicle at the time of alleged accident, FIR and Charge Sheet has been filed to suit the claim of Petitioner by colluding with concerned persons. Respondent No.1 knowingly entrusted his vehicle to the driver who had no valid and effective Driving Licence and subsequently changed the versions of on different occasions to suit their claims by colluding with concerned persons in order to defraud the Insurance Company. Under the circumstances Respondent No.2 prayed to dismiss the petition.
8. On the basis of the above pleadings, my learned Predecessor in Office had framed the following:
ISSUES IN M.V.C.1718/2016
1. Whether Petitioner prove that, the accident occurred due to rash and negligent driving of the SCH-7 10 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 Lorry bearing Reg.No.AP-28-W-8107 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
3. What Order?
ISSUES IN M.V.C.1719/2016
1. Whether Petitioner prove that, the accident occurred due to rash and negligent driving of the Lorry bearing Reg.No.AP-28-W-8107 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
3. What Order?
9. This court reframed issues on 16.08.2017 as follows:
REFRAMED ISSUES IN M.V.C.1718/2016
1. Whether Petitioner prove that, the accident occurred due to rash and negligent driving of drivers of Canter bearing Reg.No.KA-40-9676 and Lorry bearing registration No.AP-28-W-8107 and in the result, he sustained injuries?
2. Whether Respondent No.2 proves that the Petitioner was traveling in Canter bearing Reg.No.KA-40-9676 as a gracious passenger?
3. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
SCH-7 11 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
4. What Order?
REFRAMED ISSUES IN M.V.C.1719/2016
1. Whether Petitioner prove that, the accident occurred due to rash and negligent driving of drivers of Canter bearing Reg.No.KA-40-9676 and Lorry bearing registration No.AP-28-W-8107 and in the result, he sustained injuries?
2. Whether Respondent No.2 proves that the Petitioner was driver in Canter bearing Reg.No.KA-40-9676 as on the date of accident?
3. Whether the Petitioner is entitled for compensation?
If so, how much and from whom?
4. What Order?
10. In order to prove their case, the Petitioner in M.V.C.No.1718/2016 got examined as P.W.1 and got marked 13 documents as Ex.P1 to P13. Petitioner in M.V.C. No.1719/2016 got examined as P.W.2 and got marked 11 documents as per Ex.P.14 to Ex.P.24. On behalf of Petitioner in M.V.C.No.1718/2016, Medical Records Technician got examined as P.W.3 and got marked three documents as per Ex.P.25 to Ex.P.27. On behalf of Petitioners in M.V.C.No.1718/2016 and M.V.C.No.1719/2016, Dr.S.Ramachandra got examined as P.W.4 and got marked 5 documents as per Ex.P.27 to Ex.P.31. Assistant Executive of Respondent No.2 got examined as RW.1 and got marked one document as per Ex.R.1.
SCH-7 12 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
11. Heard the arguments. The counsel for Petitioners relied on judgment passed in 2008 ACJ 1741 (SC), 2009 ACJ 119 (KAR), 2014 ACK 704 (SC), 2015 ACJ 1216 (KAR), 2014 ACJ 627 (SC), 2015 ACJ 721 (SC), 2005 ACJ 301 (KAR) and 1996 ACJ 938 (KAR). The counsel for Respondent No.2 relied on Judgment passed in AIR 2013 Supreme Court 2561, MFA 962/2007, 2009 ACJ 293, ILR 2009 KAR 2921, ILR 2009 KAR 3562, 2008 ACJ 1307, Manu/KA/0718/2009, ILR 2003 KAR 3525 (SC), 2006 (ACJ 1352, AIR 2008 SC 245 and 2008 ACJ 1183. This court taken note of ratios laid down in theses citations.
12. My findings on the above said issues are as under:
Reframed Issues No.1 and 2 in M.V.C.No.1718/2016 and M.V.C.No.1719/2016 : Partly in the Affirmative. Reframed Issue No.2 in M.V.C.No.1718/2016:
: In the Affirmative.
Reframed Issue No.2 in
M.V.CNo.1719/2016 : In the Negative.
Reframed Issues No.3 in
M.V.C.No.1718/2016 and
M.V.C.No.1719/2016 : Partly in the Affirmative
Reframed Issue No.4 in
M.V.C.No.1718/2016 and
M.V.C.No.1719/2016 : As per final Order
for the following:
SCH-7 13 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
REASONS
13. Issue No.1 in M.V.C.No.1718/2016 and
M.V.C.No.1719/2016: P.W.1 stated that, on 08.08.2015 evening he purchased a load of vegetable from Chikkaballapura and hired a Canter Lorry bearing registration No.KA-40-9676 and unloaded the same at Bengaluru Market and while he was returning in the same Lorry to the Chikkaballapura at about 12-00 a.m., on N.H.7, Chikkaballapura - Bengaluru Road, near Venkatagiri Kote Lake, the driver of said Lorry driven in the same in high speed with rash and negligent manner and at that time a Lorry bearing registration No.AP-28-W-8107 which was going ahead in high speed applied sudden break without giving any signal, due to which their Canter Lorry dashed against the Lorry from backside. P.W.1 stated that, as a result he sustained compound fracture distal right tibia and avulsed laceration measuring 4 X 3 cms over right leg and grievous injuries all over the body and immediately shifted to Akash Hospital, Devanahalli. P.W.1 stated that, accident occurred due to rash and negligent on the part of both drivers. P.W.2-Muniraju, petitioner in M.V.C.No.1719/2016 deposed that, he was Travelling in Canter bearing Registration No.KA-40/9676 as a cleaner and in the said accident he sustained fracture of right femur, fracture of right leg (Type II open), head injury, he lost vision of left eye and other grievous injuries all over the body and immediately he was shifted to NIMHANS Hospital Bangalore.
SCH-7 14 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
14. In order to substantiate their contention, the Petitioner in M.V.C.No.1718/2016 has produced Ex.P1-FIR, Ex.P2- Complaint, Ex.P3 Statement of Petitioner, Ex.P.4 Spot Mahazar, Ex.P.5 Charge Sheet, Ex.P.6 Certified copy of Order Sheet in C.C.4082/2015, Ex.P.7 Certified Copy of Plea recorded in C.C.4082/2015, Ex.P.8 IMV Report, Ex.P.11 Wound Certificate and Ex.P.12 Discharge Summary. The Petitioner in M.V.C.No.1719/2016 has produced Ex.P18 Wound Certificate and Ex.P19 Discharge Summary. On going through Ex.P.1 and Ex.P.2 Complaint it is noticed that based on complaint lodged by one Anjineya a criminal case has been registered against the driver of Canter bearing Reg.No.KA-40-9676 by Vijayapura Traffic Police as per Crime No.98/2015 for the offences punishable under Section 279 and 337 of IPC. In the cross-examination P.W.1 stated that, at the time of accident, he was traveling in Canter Lorry and three persons were traveling in the said Lorry. P.W.1 stated that, another Lorry was proceeding in front of Canter Lorry on N.H-7. He stated that it was proceeding with very high speed and suddenly stopped without any signal. P.W.1 stated that due to negligence on the part of driver of Lorry alleged accident taken place. In the cross-examination P.W2 stated that at the time of accident, three persons were proceeding in Canter Lorry and Respondent No.1 was driving in the said Lorry. P.W.2 stated that Respondent No.1 not sustained any injuries in alleged accident.
P.W.2 stated that he was sitting in Cabin. P.W.2 stated that, due to negligence of both drivers of Canter and Lorry the said accident SCH-7 15 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 occurred. P.W.2 stated that front portion of Canter was damaged and Respondent No.1 not sustained any injuries. In this case, on going Ex.P.4 Spot Mahazar, it is noticed that the accident occurred on Bangalore-Chikkaballapura N.H-7 and Ex.P.8 IMV Report reveals that, in respect of Canter bearing registration No.KA-40-9676 front shape body dent, bumper, both side head side assembly damaged, front radiator assembly damaged, front both side door damaged, front wind screen damaged, front left side mirror broken, front top guard cabin dented completely, steering wheel handle twisted due to impact, front dash board damaged and front inside seats damaged. Further, in respect of Lorry bearing registration No.AP-28-W-8107, rear bumper damaged, rear right side brake light assembly damaged, rear right side brake light damaged, rear registration number plate right damaged and rear right side corner body damaged. It is to be noted that, as per Ex.P.5-Chargesheet, Vijayapura Police after investigation charge sheeted Respondent No.1 for the offences punishable under Section 279 and 337 and 338 of IPC. As per the case of petitioners Respondent No.1 is the owner cum driver of Canter bearing registration No.KA-40-9676 and Charge Sheet is filed against Respondent No.1 and no Charge Sheet is filed against driver of Lorry bearing registration No.AP-28-W-8107. As per the case of petitioners the canter Lorry dashed to the back side of Lorry as the driver of Lorry suddenly stopped the vehicle without giving signal. It is to be noted as per the evidence on record, the accident took place on N.H-7 and it is on the western SCH-7 16 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 side of road. Both vehicles were proceeding on N.H-7. On going through evidence of P.W.1, P.W.2 and Ex.P.4 Spot Mahazar and Ex.P.8 IMV Report it is clear that, the Driver of Canter Lorry not maintained distance from Lorry which was going ahead as per Traffic Rules. As per the case of petitioners at the time of accident, Respondent No.1 was driving Canter Lorry. Inspite of service of notice Respondent No.1 not appeared before the court. Respondent No.1 not challenged the Charge Sheet. There is no cogent evidence on record to show that, the accident occurred due to rash and negligent act of both drivers of Canter and Lorry. The oral and documentary evidence establishes that, the said accident occurred due to rash and negligent act of driver of Canter bearing registration No.KA-40-9676. Ex.P.11 and 18 Wound Certificates reveals that the Petitioners have sustained injuries in a road traffic accident occurred on 09.08.2015 at 12.00 a.m. For the aforesaid reasons, I have answered Reframed Issue No.1 in M.V.C.No.1718/2016 and M.V.C.No.1719/2016 Partly in the Affirmative.
15. Reframed Issue No.2 in M.V.C.No.1718/2016: In this case, Respondent No.2 contended that, the Petitioner was traveling in Canter bearing registration No.KA-40-9676 as a gracious passenger. In cross examination by the Counsel for Respondent No.2 P.W.1 stated that at the time of accident, Lorry was empty. On the day, he loaded vegetables in Canter Lorry and after unloading the vegetables he returned in same Canter Lorry.
SCH-7 17 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
P.W.1 stated that, said vegetables was loaded by him for his business. P.W.1 admitted that, in that regard he has not produced receipts or any documents. P.W.1 stated that Respondent No.1 is the owner of Lorry. P.W.1 admitted that he has not produced any document to show that Canter Lorry was taken by him from Respondent No.1 on hire basis. In this case Counsel for Petitioner stated that, in the statement recorded by the Police, i.e., in Ex.P.3 Petitioner has stated that, he has hired the Canter Lorry for the purpose of taking vegetables to market at Bangalore. After unloading the said vegetables in the Market, he was returning in empty Lorry. It is to be noted that only on the oral assertion of Petitioner and based on Ex.P.3 the Court cannot come to conclusion that Petitioner has hired the Canter Lorry for the purpose of transportation of vegetables from Respondent No.1. The Petitioner could have produced vehicle hire receipt or receipt for having sold vegetables to market. Further the Petitioner has not chosen to adduce the evidence of Respondent No.1, the owner of Canter Lorry to substantiate his contention. No such attempt is made by the Petitioner and there is no document produced by the Petitioner to show that as on the date of accident, he was traveling in Canter Lorry as an owner of goods. Under the circumstances, Respondent No.2 proved that the Petitioner traveling as a gracious passenger in Canter bearing registration No.KA-40-9676. For the aforesaid Reasons I have answered Reframed Issue No.2 in the Affirmative.
SCH-7 18 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
16. Reframed Issue No.2 in M.V.C.No.1719/2016: In this
case Respondent No.2 contented that Petitioner was driver in Canter bearing registration No.KA-40-9676 as on the date of accident. Respondent No.2 contended that Petitioner himself was driving the vehicle and he was not having valid Driving Licence. Therefore the Petitioners managed to register case against Respondent No.1. The Counsel for Respondent No.2 contended that Ex.P20 OPD Card issued by Regional Institute of Ophthalmology it is recited that Petitioner was driving the vehicle which Canter which banged to a Lorry and he injured. It is to be noted that on perusal of Ex.P30 Case Sheet pertaining to Petitioner issued by Victoria Hospital, it is recited that, 'RTA on 09.08.2015 at 1.00 a.m., near Chikkaballapura alleging traveler in a Lorry, driver lost control and hit a parked six wheeler'. In the cross-examination by the Counsel for Respondent No.2, P.W.2 stated that he was sitting in the cabin and 1st Respondent was the driver of said Canter Lorry. Nothing contrary is elicited from the mouth of P.W.2 to prove that at the time of accident, Petitioner was driving Canter Lorry bearing registration No.KA-40-9676. There is no cogent evidence on record produced by the Respondent No.2 to prove that, at the time of accident, Petitioner was the driver of Canter Lorry bearing registration No.KA-40- 9676. Under the circumstances Respondent No.2 failed to prove that Petitioner was the driver of Canter Lorry at the time of accident. For the aforesaid Reasons I have answered Reframed Issue No.2 in the Negative.
SCH-7 19 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
17. Reframed Issue No. 3 in M.V.C. No.1718/2016: It is the case of the Petitioner that, in the said accident he sustained compound fracture distal right tibia, avulsed laceration measuring 4 X 3 cms, 5 cms above ankle joint on right leg and both bone fractures at lower end of right leg. P.W.1 stated that, immediately, after the accident, he was shifted to Akash Private Hospital, Devanahalli, wherein he has taken treatment as inpatient from 09.08.2015 to 24.08.2015. P.W.1 stated that, he underwent surgery on 10.08.2015. P.W.1 stated that ORIF with LCP distal right tibia, ORIF with 1/3rd tubular plate right fibula and wound debridement was done on 10.08.2015. The Petitioner has produced Ex.P.11 Wound Certificate reveals that, Petitioner has sustained an avulsed laceration measuring 4 X 3 cms, 5 cms above the ankle joint on right leg and both bone fracture at the lower end of right leg. The Doctor opined that the said injuries are grievous in nature. To substantiate his case P.W.1 got examined the Medical Records Technician of Akash Hospital as P.W.3. He has produced Ex.P.26-Case Sheet and Ex.P.27 MLC Register. In the cross examination by the counsel for respondent No.2, P.W.3 stated that he does not know the contents of Ex.P.26 and Ex.P.27. Further in order to substantiate his case, Petitioner got examined Doctor as P.W.4. P.W.4 produced Outpatient Book and X-ray Film, which were marked as Ex.P.27 and Ex.P.28. This Court noticed that, already copy of MLC Register got marked Ex.P.27, hence OPD Book pertaining to Petitioner is considered as Ex.P.27(a) in order to avoid technical defects. P.W.4 deposed SCH-7 20 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 that, as per oral statement of patient and Discharge Summary Petitioner sustained compound fracture distal third right tibia with fracture right lateral malleolus. P.W4 stated that, ORIF with LCP done to distal right tibia, ORIF with 1/3rd tubular plate done to right fibula and wound debridement, primary suturing of laceration right leg and knee done on 10.08.2015. P.W.4 deposed that Petitioner was discharged on 24.08.2015. This Court on going through Ex.P12- Discharge Summary and Ex.P26-Case Sheet, noticed that, Petitioner has taken treatment as inpatient in Akash Hospital from 09.08.2015 to 24.08.2015. Further the said documents also reveal that, Petitioner underwent ORIF with LCP done to distal right tibia, ORIF with 1/3rd tubular plate right fibula and wound debridement primary suturing of laceration right leg and knee. On going through Case Sheet and Discharge Summary it is clear that, Petitioner took treatment as inpatient for a period of 16 days and he underwent surgery. By considering the injuries sustained by the Petitioner, treatment taken by him and hospitalization, I am of the opinion that, it is reasonable to award Rupees 60,000/- under the head of pain and suffering.
18. The Petitioner has claimed compensation of Rupees 60,000/- towards Medical, Conveyance and Special diet. The Petitioner has produced Ex.P13 - 23 Medical Bills to the tune of Rupees 29,864/-. As already stated through P.W.3, the Petitioner has produced Ex.P26-Case Sheet. In the cross examination P.W1 denied the suggestion that he has not spent Rupees 60,000/-
SCH-7 21 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
towards treatment and Ex.P.13 Medical Bills are created for the purpose of this case. In this case, as per Ex.P11 Wound Ceritificate, Petitioner sustained avulsed laceration measuring 4 X 3 cms, 5 cms above the ankle joint on right leg and both bone fracture at the lower end of right leg. Further Case Sheet and Discharge Summary reveals that Petitioner underwent ORIF with LCP done to distal right tibia, ORIF with 1/3rd tubular plate right fibula and wound debridement primary suturing of laceration right leg and knee. It is clear that by conducting surgery internal fixation was done to right tibia and fibula of Petitioner. Hence, there is no reason to disbelieve the Medical Bills produced by the petitioner. This court is of the opinion that, it is reasonable to award compensation of Rupees 29,864/-, which is rounded off to Rupees 29,900/- under the head of Medical Expenses and Rupees 10,000/- towards Conveyance and Special diet and other incidental charges.
19. P.W.1 stated that he requires sum of Rupees 45,000/- for removal of implants from his right leg in a private well equipped nursing home, at Bangalore. In the cross examination by the counsel for Respondent No.2, P.W.4 stated that one year after discharge of Venkataramanappa he has examined him. P.W.4 stated that fracture of Venkataramanappa was united. However implants are in situ. By considering the available evidence on record it is reasonable to award compensation of Rupees 20,000/- under the head of future medical expenses.
SCH-7 22 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
20. P.W.1 in his evidence deposed that, he was doing vegetable business and earning Rupees 12,000/- p.m. On account of accidental injuries he was not in a position to attend his work, hence he sustained loss of income. The Petitioner has not produced any documents to show his avocation and income. In the cross-examination by the counsel for Respondent No.2, P.W.1 denied the suggestion that he was not doing vegetable business and he was not earning income of Rupees 12,000/- p.m. P.W.1 admitted that he has not produced any documents to show his avocation and income. As per the Ex.P.11 and Ex.P.12 as on the date of accident, the age of Petitioner was 45 years. Such being the case in order to lead his life, he has to do some work. There is no document produced by the Petitioner to show his income and avocation. Under the circumstances the notional income of Petitioner is considered as Rupees 11,000/- p.m. As per the documents available on record, the Petitioner has sustained compound fracture distal 3rd right tibia with fracture right lateral mallelous and implants are inserted to his right leg by conducting surgery. At least 3 months is required for him to recoup. During said period he was not in a position to work and said loss is to be compensated. Under the circumstances it is reasonable to award Rupees 33,000/- under the head of loss of earning during the period of treatment.
SCH-7 23 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
21. P.W.1 stated that, due to accidental injuries he sustained permanent disability. P.W.1 stated that he is doing vegetable business and due to accidental injuries he is not in a position to do manual work. He is facing lot of financial problem as he is not able to do his avocation due to accidental injuries. In this case P.W.4 Doctor in his evidence stated that, Petitioner sustained permanent disability of 27.1% of right lower limb and 13.5% to the whole body. In the cross-examination by the counsel for Respondent No.2, P.W.4 admitted that fracture of Venkataramanappa is united. P.W.4 denied the suggestion that Venkataramanappa has not sustained disability as stated by him in his evidence affidavit. P.W.4 stated that there was fracture to lateral mallelous. P.W.4 denied the suggestion that he has falsely stated that Venktaramanappa sustained disability of right ankle joint. P.W.4 stated that right knee joint of Venkataramanappa is normal. P.W.4 admitted that there was no loss of muscles of right leg of Venkataramanappa. P.W.4 denied the suggestion that as fractures of venkataramanappa is united there is no disability to him and he has stated higher side disability to help him. It is to be noted that, Petitioner sustained compound fracture distal 3rd right tibia with fracture right lateral mallelous. The Doctor assessed permanent disability of about 27.1% to right lower limb and 13.5% to the whole body of Petitioner. The Doctor has not assessed exact functional disability to the whole body of Petitioner. By looking into the injuries sustained by the Petitioner and the medical records, the percentage of permanent physical disability SCH-7 24 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 is taken as 9% to the whole body of Petitioner. The income of the Petitioner is taken as Rs.11,000/ X 12 = Rupees 1,32,000/- per annum. As per Ex.P.11 Wound Certificate, Petitioner was aged about 45 years at the time of accident. For the age of 45 years, the multiplier is "14 " as per the decision reported in: 2009 ACJ 1298 Sarala Varma Vs.Delhi Transport Company. So, the loss of physical disability would be 1,32,000 x 9 / 100 x 14 = Rupees 1,66,320/.
22. Hence, the petitioner in M.V.C.No.1718/2016 is entitled for total compensation of Rupees 3,19,220/- under different heads as below.
1 For pain and sufferings, mental Rs. 60,000.00 agony.
2 Actual medical expenses. Rs. 29,900.00 3 For Future Medical Expenses. Rs. 20,000.00 4 For Conveyance and Special Diet. Rs. 10,000.00 5 For Loss of earning during the Rs. 33,000.00 period of treatment.
6 For permanent disability Rs.1,66,320.00
Total Rs.3,19,220.00/
23. Reframed Issue No. 3 in M.V.C. No.1719/2016: It is the case of the Petitioner that in the said accident he sustained fracture of right femur, fracture of right leg (type 2 open), head injury and loss vision of left eye and other grievous injuries all over the body. P.W.2 stated that, immediately, after the accident, he was shifted to Nimhans Hospital, Bangalore and thereafter he SCH-7 25 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 was shifted to Victoria Hospital, wherein he has taken treatment as inpatient from 09.08.2015 to 30.08.2015. P.W.2 stated that, he was underwent surgery. P.W.2 stated ORIF with ILN femur (right), CRIF with ILN tibia (right) done. P.W.2 stated by conducting surgery 2 rods and 4 screws are inserted to his right leg and those implants are still in situ. It is to be noted that, the Petitioner has produced Ex.P.18 Wound Certificate which reveals that, Petitioner sustained fracture shaft of right femur, type 2 open (compound) fractures bone bones (tibia and fibula) of right leg. Further Petitioner got examined Doctor as P.W.4. P.W.4 produced Ex.P.29 Outpatient Book, Ex.P.30 Case Sheet and Ex.P.31 X-ray Film. P.W.4 deposed that, Petitioner sustained fracture shaft of right femur and type II open(compound) fracture both bones (tibia and fibula) of right leg. P.W.4 stated that, ORIF with ILN for right femur and CRIF done to fracture of right tibia on 21.08.2015. P.W.4 deposed that Petitioner was discharged on 30.08.2015. In the cross examination P.W.4 admitted that he has assessed disability of Petitioner. P.W.4 denied the suggestion that Petitioner has not sustained fracture to hip joint, knee joint and ankle joint. On going through Ex.P.19 Discharge Summary reveals that Petitioner has taken treatment as inpatient from 09.08.2015 to 30.08.2015 at Victoria Hospital wherein ORIF with ILN right femur and CRIF with ILN right tibia done on 21.08.2015. On going through Discharge Summary it is clear that, Petitioner took treatment as inpatient for a period of 22 days and he underwent surgery. By considering the injuries sustained by the Petitioner, SCH-7 26 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 treatment taken by him and hospitalization, I am of the opinion that, it is reasonable to award Rupees 70,000/- under the head of pain and suffering.
24. The Petitioner has claimed compensation of Rupees 65,000/- towards Medical, Conveyance and Special Diet. The Petitioner has produced Ex.P22- 41 Medical Bills to the tune of Rupees 46,528/-, Ex.P.23 Advance Receipt to the tune of Rupees 920/- and Ex.P.24 - 3 Medical Prescriptions. In the cross examination by the counsel for the Respondent No.2, P.W.2 denied the suggestion that he has not spent Rupees 65,000/- towards treatment. P.W.2 denied the suggestion that Ex.P.22 Medical Bills are created for the purpose of this case and Medical Bills are reimbursed to him under Chief Minister Relief Fund. As per material evidence on record the Petitioner sustained fracture shaft of right femur and type II open(compound) fracture both tibia and fibula of right leg and by conducting surgery internal fixation was done. Such being the case there is no reason to disbelieve the medical bills produced by the petitioner. Hence, I am of the opinion that, it is reasonable to award compensation of Rupees 46,528/-, which if rounded off to Rupees 46,600/- under the head of Medical Expenses and Rupees 10,000/- towards Conveyance, Special Diet and other incidental charges.
25. P.W.2 stated that he require a sum of Rupees 45,000/- for removal of implants from his right leg in a well equipped Hospital, SCH-7 27 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 at Bangalore. P.W.4-Doctor deposed that, on examination of P.W.2, fracture shaft of right femur shows partial union with broken implant (distal) locking bolt and nail in situ and fractures of tibia and fibula of right leg shows union with implants in situ in tibia. As per Ex.P.19 interlocking nail for right femur and internal fixation done to right tibia of Petitioner. Such being the case in future there is possibility of requirement of further treatment to the Petitioner. By considering the available material on record and evidence of Doctor, it is reasonable to award compensation of Rupees 20,000/- under the head of future medical expenses.
26. P.W.2 in his evidence deposed that, prior to accident he was hale and healthy and he was working as Cleaner in Lorry and earning sum of Rupees 10,000/- p.m., along with Batta of Rupees 50/- per day. P.W.2 stated that, totally he was earning Rupees 11,500/- p.m. On account of accidental injuries he was not in a position to attend his work, hence he sustained loss of income. In the cross examination by the counsel for respondent No.2, P.W.2 denied the suggestion that he was not working as a cleaner and earning Rupees 10,000/- p.m., and bata of Rupees 50/- per day. In this case, the Petitioner has not produced any documents to show his avocation and income. Such being the case in order to assess loss earning during the period of treatment this court considered notional income of Petitioner as Rupees 11,000/- p.m. As per medical record the age of the Petitioner is 30 years. The Petitioner has sustained fracture shaft of right femur and SCH-7 28 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 compound fracture both bones tibia and fibula of right leg and implants are inserted by conducting surgery. At least 3 months is required for him to recoup. During said period he was not in a position to work and said loss is to be compensated. Under the circumstances it is reasonable to award Rupees 33,000/- under the head of loss of earning during the period of treatment.
27. P.W.2 stated that, due to accidental injuries he sustained permanent disability. P.W.2 stated that he was hale and healthy and working as Cleaner in Lorry. P.W.2 stated that due to accidental injuries he sustained permanent disability and he is not in a position to do work. In the cross examination by the counsel for Respondent No.2, P.W.2 stated that he has no documents to his avocation and income. P.W.4 Doctor deposed that, Petitioner has sustained permanent disability of 57.63% /of right lower limb and permanent residual physical disability of 28.8% to the whole body. In the cross-examination by the counsel for Respondent No.2, P.W.4 denied the suggestion that Petitioner has not sustained any of kind of disability and in order to help he has stated higher side disability to him. It is to be noted that, the Doctor has not assessed permanent functional disability to the whole body of Petitioner. By looking into the injuries sustained by the Petitioner and the medical records, the percentage of permanent physical disability is taken as 10% to the whole body of Petitioner. The income of the Petitioner is taken as Rupees 11,000/ X 12 = 1,32,000/- per annum. As per Ex.P.18 Wound SCH-7 29 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 Certificate, Petitioner was aged about 30 years at the time of accident. For the age of 30 years, the multiplier is "17" as per the decision reported in: 2009 ACJ 1298 Sarala Varma Vs.Delhi Transport Company. So, the loss of physical disability would be Rupees 1,32,000 x 10 / 100 x 17 = Rupees 2,24,400/.
28. Hence, the petitioner in M.V.C.No.1209/2016 is entitled for total compensation of Rupees 4,04,000/- under different heads as below.
1 For pain and sufferings, mental Rs. 70,000.00 agony.
2 Medical Expenses Rs. 46,600.00 3 For Future Medical Expenses. Rs. 20,000.00 4 For Conveyance and Special Diet Rs. 10,000.00 5 For Loss of earning during the Rs. 33,000.00 period of treatment 6 For permanent disability Rs.2,24,400.00/ Total Rs.4,04,000.00
29. In this case Respondent No.2 contended that Petitioner in M.V.C.No.1718/2016 was traveling as gracious passenger in Canter lorry bearing registration No.KA-40-9676. As already discussed the Petitioner failed to prove before the court to show that he was traveling the said Lorry as a owner of Goods. Such being the case the Petitioner in M.V.C.NO.1718/2016 was traveling in the Canter lorry bearing registration No.KA-40-9676 as a gracious passenger. Further Respondent No.2 contended that Petitioner in M.V.C.No.1719/2016 was a driver of Canter lorry SCH-7 30 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 bearing registration No.KA-40-9676 at the time of accident. However Respondent No.2 failed to prove their assertion. In this case Petitioner in M.V.C. No.1719/2016 asserted he was traveling as Cleaner of Canter lorry bearing registration No.KA-40-9676. However the Petitioner has not produced cogent evidence before the court to accept his contention. The Petitioner has not chosen to adduce the evidence of owner of Canter lorry bearing registration No.KA-40-9676 or to produce any documents issued by him. It is to be noted that Respondent No.1 being the owner of Canter lorry bearing registration No.KA-40-9676 not chosen to appear before the court even after service of notice. Duty cast upon the owner of vehicle to appear before the court, however he evaded from appearing before the court. This court has already come to conclusion that accident occurred due to rash and negligent act of driver of Canter lorry bearing registration No.KA- 40-9676. Hence petition against Respondent No.3 - owner and Respondent No.4 - insurer of Lorry bearing registration No.AP-28- W-8107 is to be dismissed. Respondent No.1 being the owner- cum-driver of Canter lorry bearing registration No.KA-40-9676 permitted the Petitioners to travel in his Canter lorry as gracious passengers, hence he has violated terms and conditions of policy. Under the circumstances Respondent No.1 being the owner is liable to pay compensation to the Petitioners in M.V.C. No.1718/2016 and M.V.C.No.1719/2016 and petition against Respondent No.2 is liable to be dismissed. Respondent No.1 being the owner of offending Canter lorry bearing registration SCH-7 31 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 No.KA-40-9676 is liable to pay compensation to the Petitioner in M.V.C.No.1718/2016 and M.V.C.No.1719/2016 with interest at 9% from the date of petition till realization. Accordingly, Reframed Issue No.3 in M.V.C.No.1718/2016 and M.V.C.No.1719/2016 is answered Partly in the Affirmative.
30. Reframed Issue No.4 in M.V.C.NO.1718/2016: In view of above discussions, I proceed to pass the following:
ORDER The petition filed by the Petitioner under Sec.166 of I.M.V Act is hereby partly allowed with costs.
The petitioner is entitled for total compensation of Rupees 3,19,220/- along with future interest at the rate of 9% p.a. (excluding on future medical expenses of Rs.20,000/-) from the date of petition till realization of entire amount.
The respondent No.1 being the Owner of offending vehicle is directed to deposit compensation amount within two months from the date of award.
Petition against the Respondents No.2 to 4 is hereby dismissed.
Out of the compensation amount 75% is ordered to be released in favour of Petitioner by issuing an account payee cheque with proper identification and remaining 25% of the Award amount is ordered to be deposited in SCH-7 32 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 fixed Deposit Scheme in the name of the Petitioner in any nationalized Bank for a period for a period of three years.
Original copy of the Judgment shall be kept in M.V.C.No.1718/2016 and the copy of the same shall be kept in M.V.C.No.1719/2016.
The Advocate's fee is fixed at Rs.1,000/-.
Draw award accordingly.
31. Reframed Issue No.3 in M.V.C.No.1719/2016: In view of above discussions, I proceed to pass the following:
ORDER The petition filed by the Petitioner under Sec.166 of I.M.V Act is hereby partly allowed with costs.
The petitioner is entitled for total compensation of Rs.4,04,000/- along with future interest at the rate of 9% p.a. (excluding on future medical expenses of Rs.20,000/-) from the date of petition till realization of entire amount.
The respondent No.1 being the Owner of offending vehicle is directed to deposit compensation amount within two months from the date of award.
Petition against the Respondents No.2 to 4 is hereby dismissed.
Out of the compensation amount 75% is ordered to be released in favour of Petitioner SCH-7 33 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 by issuing an account payee cheque with proper identification and remaining 25% of the Award amount is ordered to be deposited in fixed Deposit Scheme in the name of the Petitioner in any nationalized Bank for a period for a period of three years.
Original copy of the Judgment shall be kept in M.V.C.No.1718/2016 and the copy of the same shall be kept in M.V.C.No.1719/2016.
The Advocate's fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the steno, computerized by him, corrected by me and then pronounced in the open Court on 11.09.2017).
(SUJATHA. S) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small causes, Member, MACT-7, Bangalore.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS;
P.W.1 : Venkataramanappa
P.W.2 : Muniraju
P.W.3 : Chetan
P.W.4 : Dr.S.Ramachandra
SCH-7 34 M.V.C.No.1718/2016
C/w M.V.C.No. 1719/2016
II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONERS:
Ex.P.1 : Certified Copy of FIR
Ex.P.2 : Certified Copy of Complaint
Ex.P.3 : Certified Copy of Statement of
Venkataramanapa
Ex.P.4 : Certified Copy of Spot
Panchanama
Ex.P.5 : Certified Copy of Charge Sheet
Ex.P.6 : Certified Copy of Order Sheet of
C.C.No.4082/2015
Ex.P.7 : Certified Copy of Plea recorded in
C.C. No.4082/2015
Ex.P.8 : Certified copy of MVI Report
Ex.P.9 : Certified cop of Order Sheet of
MVC No.570/2015
Ex.P.10 : Certified copy of withdrawal Memo filed in MVC No.570/2015 Ex.P.11 : Certified copy of Wound Certificate Ex.P.12 : Discharge Summary Ex.P.13 : Medical Bills (23 in nos.) Ex.P.14 : Certified copy of Statement of Muniraju Ex.P.15 : Certified copy of MVC No.571/2015 Ex.P.16 : Certified copy of withdrawal Memo filed MVC No.571/2015 Ex.P.17 : Emergency Case Record Ex.P.18 : Certified copy of Wound Certificate Ex.P.19 : Discharge Summary Ex.P.20 : OPD Book of Minto Hospital Ex.P.21 : OPD Book of Victoria Hospital Ex.P.22 : Medical Bills (41 in nos.) Ex.P.23 : Advance Receipts Ex.P.24 : Medical Prescriptions (3 in nos.) Ex.P.25 : Authorization Letter dated SCH-7 35 M.V.C.No.1718/2016 C/w M.V.C.No. 1719/2016 02.12.2016 Ex.P.26 : Case Sheet Ex.P.27 : True copy of MLC Register Ex.P.27(a) : OPD Book Ex.P.28 : X-ray Film Ex.P.29 : OPD Book Ex.P.30 : Case Sheet Ex.P.31 : X-ray Film III. LIST OF WITNESSES EXAMINED FOR THE RESPONDENTS:
R.W.1 : Gireesha
IV. LIST OF DOCUMENTS MARKED ON BEHALF OF
RESPONDENTS:
Ex.R.1 : Insurance Policy
(SUJATHA. S)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small causes,
Member, MACT-7, Bangalore.