Bangalore District Court
Being The Police Constable On Duty And vs No on 7 September, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 7th day of September, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B. (Spl.), L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.5629/2013
Sri. Shivakumar.N., ... PETITIONER
S/o. Nanjappa,
Aged about 50 years,
Doddasanne Post,
Devanahalli Taluk,
Bangalore.
(By Sri. B.K.Vasudevamurthy, Adv.,)
V/s
1. ICICI Lombard General Insurance Co. ...RESPONDENTS
Ltd.,
No.69, 1st Floor,
SVR Complex,
Hosur Main Road,
Madivala,
Bangalore.
(Policy No.3001/71/71336202/01/000)
2. Mr. Arjeeth Banarjee,
S/o Bandopadyaya. D.P.,
C-2, Sreeja Residency Block-A,
26th Cross, Balaji Layout,
Kaggadasapura,
C.V.Ramannagar,
2 M.V.C.NO.5629/2013
(SCCH-7)
Bangalore - 560 093.
(R1- By Sri. Manoj Kumar M.R., Adv.,)
(R2- By Sri. Chandrashekar.M., Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989 praying to award compensation of Rupees 10,00,000/- under all the special and general heads with interest.
2. The brief averments of the Petitioner's case are as follows;
a) On 06.07.2013 at about 5.15 p.m., he being a pillion rider of a Motor Cycle bearing Registration No.KA-04-EM-5470 was going on B.B. Road, very carefully and cautiously observing the traffic rules and regulations. When he reached near Paly Gate, all of a sudden and without any signal, one Car bearing Registration No.KA-01-MF-6100 driven by its driver in a rash and negligent manner, endangering to the human life and at high speed, has came from the same direction and hit his vehicle from behind. Due to which impact, he fell down and sustained multiple injuries, like, lacerated wound L Shaped over posterior aspect of scalp 7 x 1 cms, 6 x 1 cms, abrasion 2 x 2 over forehead, 1 x 1 cms over nose, right leg 20 x 1 cms open wound over medial aspect of leg, lower third to below medial mellelous, open type right Bimalleelar fracture with ankle dislocation with tenden Achilles rupture and injuries all over the body.
3 M.V.C.NO.5629/2013(SCCH-7)
b) Immediately, he was shifted to M.S. Ramaiah Hospital, wherein, he took treatment as an inpatient for about 15 days and multiple operations were done to him.
c) At the time of discharge, the Doctor has advised him to take bed rest for about 6 months and he is still taking treatment as an outpatient and has spent more than a sum of Rupees 1,00,000/- towards medical and other allowances.
d) He was hale and healthy at the time of accident and he being a Supervisor at M.S. Ramaiah Hospital Estates was earning salary of Rupees 8,000/- per month.
e) Now, because of this accident, he has become disabled and not in a condition to work so as to earn for his lively hood and he is deprived of all his amenities.
f) The accident is only due to rash and negligent driving of the driver of the said Car. The jurisdictional Police have registered a case in Crime No.54/2013 under Sections 279 and 338 of IPC.
g) The Respondents being insurer and insured of the said vehicle are jointly and severally liable to pay the compensation to him. The policy of the said vehicle was valid at the time of accident. Hence, this Petition.
3. Initially, though the notice was duly served on the Respondent No.1, it was remained absent and hence, it was placed as exparte on 10.12.2013. Later, the Respondent No.1 has 4 M.V.C.NO.5629/2013 (SCCH-7) appeared before this Tribunal through its Learned Counsel and as per the Order dated 20.01.2014 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.1 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 27.02.2015 passed on I.A.No.III, the written statement filed by the Respondent No.1 is taken on file.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel and has filed the written statement.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The road traffic accident having occurred at the jurisdiction of Devanahalli Traffic Police Station limits and that, for the best reasons best known to the Petitioner, has so filed the claim petition before this Hon'ble Court. As such, on the aspect of jurisdiction, the claim petition could not be adjudicated before this Hon'ble Court and as such, the claim petition is liable to be dismissed on the question of jurisdiction.
b) The petition is not maintainable either on facts or in law against it.
c) A false belated complaint has so been lodged at around 7.30 p.m. on 06.07.2013 by one Mr.P.Umesh P.C. 12382.
5 M.V.C.NO.5629/2013(SCCH-7)
d) The Respondent No.2/insured, in whose favor the policy of insurance was issued by it in respect of Car bearing Registration No.KA-01-MF-6100 had so failed to extent co-operation to it in contesting the present matter. It is obvious that, the 2nd Respondent has colluded with the Petitioner in conducting the present matter. As such, it seeks leave of this Hon'ble Court to contest the claim of the Petitioner on all grounds including actionable negligence and quantum of compensation among other grounds as well as provided under Section 170 of M.V. Act 1988. As well, the claim petition as against it is liable to be dismissed as insured/Respondent No.2, who since did not possess valid and effective driving licence to drive the insured vehicle, Car and thus, had so acted in contravention of the policy terms and conditions as well the provisions of the Motor Vehicles Act. As well that, the insured vehicle was so permitted to ply on the public road, without a valid fitness certificate.
e) Before meeting the averments in the claim petition, it seeks leave of this Hon'ble Court or provides the following facts- perspective to appreciate its stand.
(i) The alleged accident having occurred on 06.07.2013, the Petitioner/pillion rider of Motor Cycle bearing Registration No.KA-04-EM-5470, having proceeding from Bangalore towards Devanahalli, since driven by the rider was so proceeding on the center of the road and that had so come to the left side of the road all of a sudden, as to take a left turn without giving any signal so as to reach Palya Gate at around 05.15 p.m., at which time, the 6 M.V.C.NO.5629/2013 (SCCH-7) driver of the Car bearing Registration No.KA-01-MF-6100, proceeding from Bangalore towards Devanahalli in the same direction, wherein, both the vehicles had met with road traffic accident, wherein, the accident had so occurred at the junction. This fact is further confirmed as per the Police documents, in particular, the belated complaint.
(ii) The FIR so lodged on the same day at around 7.30 p.m., on 06.07.2013 by Mr. P.Umesh PC 12382 purports to be the Police constable duty, is to the effect that, the driver of the Car No.KA-01- MF-6100 drove the same in a rash and negligent manner and dashed against the Motor Cycle from behind resultant both the rider and pillion rider had a fall along with the Motor Cycle, as a result, rider and pillion rider of Motor Cycle had a fall, wherein, rider/Petitioner had sustained simple injuries and that pillion rider/petition had sustained grievous injuries.
(iii) The fact as per Mahazar, the accident spot being a main road, the rider of Motor Cycle KA-04-EM-5470, ought to have taken reasonable Care while riding the Motor Cycle and the damages sustained to the insured Car being as Front right side wheel fender damaged, front right side mirror damaged, would substantiate the fact that, rider of Motor Cycle, on which, the Petitioner was a pillion rider, while riding Motor Cycle had so come in contact with the right portio of the Car and that was equally responsible for the alleged accident, that occurred on 06.07.2013. This fact proves that, rider of Motor Cycle No.KA-04-EM-5470 was driving said vehicle in sufficient high speed, but, erratically in the middle of the 7 M.V.C.NO.5629/2013 (SCCH-7) road. The accident occurred solely due to rash and negligent manner of driving of rider of Motor Cycle No.kA-04-EM-5470, who drove the vehicle in a rash and negligent manner, thus, confirming or betraying total guilt of culpable negligence in having caused the accident.
(iv) The complaint so lodged almost after three hours after the accident, i.e., on 06.07.2013 at around 7.30 p.m., complainant/informant being the Police constable on duty and that, Police authorities have so with undue influence infact filed charge sheet against the driver of insured Car, at the instance of Petitioner with undue influence, as rider of the Motor Cycle, on which, the Petitioner was a pillion rider, did not possess driving licence to ride a two wheeler. Hence, on this ground itself, it clearly goes to prove the bonafide of informant/complaint, as well Petitioner in having filed a false case against the driver of insured Car bearing Registration No.KA-01-MF-6100, wherein, the accident had occurred due to rash and negligent riding of Motor Cycle bearing Registration No.KA-04-EM-5470 by its rider and as well as did not know the art of riding a two wheeler, neither possessed valid and effective driving licence. As such, the present claim petition is liable to be dismissed as against it, as accident occurred due to rash and negligent riding of Motor Cycle bearing Registration No.KA-04-EM-5470.
f) The vehicle in question, namely, Car bearing Registration No.KA-01-MF-6100 was covered by Policy bearing No.3001/71336202/01/000, valid for the period from 14.05.2013 8 M.V.C.NO.5629/2013 (SCCH-7) to 13.05.2014 and that, the liability of it, if any, is limited to the terms and conditions of policy.
g) The accident occurred on account of actionable negligence of two drivers, namely, the rider of Motor Cycle bearing Registration No.KA-04-EM-5470, on which, the Petitioner was proceeding as a pillion rider and the other vehicle, namely, insured Car bearing No.KA-01-MF-6100, which were plying on the same road. Alternatively that, the accident occurred on account of use of two vehicles and as such, both the vehicles involved in the accident must be held to be guilty of composite negligence and the law of the full bench in "GANESH" reported in ILR 1999 Kar 403 would apply. The owner and insurer of the other vehicle, Motor Cycle bearing Registration No.KA-04-EM-5470, which was involved in the accident are not impleaded inspite of the declaration of the law in "GANESH".
h) The Respondent seeks protection under Section 147 and 149 of the M.V. Act, 1988.
i) As per Section 158(6) of M.V. Act, 1988, it is mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days from the date of the information, but, the Devanahalli Traffic Police Station Authorities failed to forward the documents and not complied with the statutory demand.
j) The Respondent No.2 being the registered owner of vehicle Car bearing Registration No.KA-01-MF-6100, who was on 9 M.V.C.NO.5629/2013 (SCCH-7) the wheels at the material time of accident, did not possess a valid and effective driving licence to drive the insured Car, which amounts to breach of policy terms and conditions, as such, it is not liable to pay any compensation nor indemnify the 2nd Respondent.
k) The Petitioner claimed interest at 18%, which is highly excessive and the same is contrary to Section 3 of the Interest Act, 1978 and the observations of the various Judgments of the Hon'ble Apex Court.
l) The Petitioner is not entitled to claim any interest on non-pecuniary damages as per the observations of the Judgments of Hon'ble Apex Court.
m) The amount of compensation claimed is highly exaggerated, illegal and fanciful and the Petitioner is trying to make a windfall out of an unfortunate accident in as much as has claimed highly disproportionate amount having no regard to truth. It is obvious that, the Petitioner is trying to convert an unfortunate incident into a windfall and it is not liable to pay Rupees 10,00,000/-. Hence, prayed to dismiss the claim petition.
6. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition filed by the Petitioner as against him is not maintainable in law or on facts.
10 M.V.C.NO.5629/2013(SCCH-7)
b) He was driven the said Car slowly and cautiously on the said road and having valid driving licence at the time of accident.
c) He admits that, he is the R.C. Owner of the said Car and all the R.T.O. documents pertaining to the said vehicle and such other documents are standing in his name and the same is insured with the1st Respondent ICIC Lombard General Insurance Company Ltd., vide Policy No.3001/71336202/01/000 valid from 14.05.2013 to 13.05.2013 and policy was in force as on the date of accident. The 1st Respondent himself is liable to pay, but, not he.
d) The compensation amount of Rupees 10,00,000/- as claimed by the Petitioner is excessive, exorbitant and speculative nature. Hence, prayed to dismiss the claim petition.
7. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Car bearing Reg.No.KA-01-MF-6100 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
11 M.V.C.NO.5629/2013(SCCH-7)
8. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.14. On the other hand, the Respondents No.1 and 2 have not adduced any evidence on their behalf.
9. Heard the arguments.
10. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 2,56,958/- with
interest at the rate of 6%
p.a. from the date of the
petition till the date
payment, from the
Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, on 06.07.2013 at about 05.15 p.m., he being a pillion rider of a Motor Cycle bearing Registration No.KA-04-EM-5470 was going on B.B. Road and the rider of the said Motor Cycle was riding the same very carefully and cautiously observing the traffic rules and regulations and when 12 M.V.C.NO.5629/2013 (SCCH-7) they reached near Palya Gate, all of a sudden and with out any signal one Car bearing Registration No.KA-01-MF-6100 driven by its driver in a rash and negligent manner, endangering to human life and at high speed, has came from the same direction and hit his vehicle from behind. He has further stated that, due to the said impact, he fell down and sustained multiple injuries, like, open type right bimalleolar fracture with ankle dislocation with tendon Achilles rupture injuries all over the body, lacerated wound L Shaped over posterior aspect of scalp 7 x 1 cms, 6 x 1 cms, abrasion 2 x 2 over forehead, 1 x 1 cms over nose, right leg 20 x 1 cms open wound over medial aspect of leg, lower third to below medial mellelous for lower end of fibula. He has further stated that, immediately, he was shifted to M.S. Ramaiah Hospital, wherein, he took treatment as an inpatient for about 15 days, multiple operations were done to him, i.e., wound debridement, TA repair, TBW medual malleolus, external fixation with K-wire of lateral malleolus were done and after discharge from the Hospital, he was on bed rest as per the advise of the Doctor. He has further stated that, he got admitted to the same Hospital on 21.08.2013 and underwent 3 more operations, like, removal of external fixator, wound debridement on 26.08.2013 and one more wound debridement on 08.09.2013 and SSG was done on 10.09.2013. He has further stated that, on 08.04.2014, he got admitted to the same M.S.Ramaiah Hospital for the 3rd time and underwent an operation of removal of implants on 09.04.2014 and got discharged on 11.04.2041. He has further stated that, the accident is only due to the rash and negligent driving of the driver of the said Car and 13 M.V.C.NO.5629/2013 (SCCH-7) the jurisdictional Police have filed a case and charge sheeted against the said driver.
12. To consider his oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Charge Sheet, Ex.P.3 Wound Certificate, Ex.P.5 Spot Hand Sketch, Ex.P.6 Spot Panchanama, Ex.P.7 MVI Report, and Ex.P.8 Discharge Summaries 3 in numbers, Ex.P.11 Photographs 4 in numbers and Ex.P.12 C.D. relating to Ex.P.11 Photographs.
13. No doubt, the P.W.1, in his cross-examination has stated that, the contents of Ex.P.5 Spot Hand Sketch are true and correct and at the time of accident, they were proceeding by the side of center median. Further, though he has stated in his cross- examination that, he has no hurdle to examine his friend Srinivas, who is the rider of the Motor Cycle, on which, he was proceeding as a pillion rider, the Petitioner did not care to examine the said Srinivas in the present petition, as witness on his behalf. But, only based on the said evidence stated by the P.W.1 in his cross- examination, it cannot be thrown away the above said oral version of P.W.1 and the contents of Ex.P.1 to Ex.P.8, Ex.P.11 and Ex.P.12, as the contents of the said material documents clearly disclosed that, the entire negligence is on the part of the driver of the Car bearing Registration No.KA-01-MF-6100, i.e., the Respondent No.2, who was also the owner of the offending Car and there was no negligence on the part of the rider of the Motor Cycle bearing Registration No.KA-01-EM-5470, wherein, the Petitioner was proceeding as a pillion rider, which is clear form the following 14 M.V.C.NO.5629/2013 (SCCH-7) discussion. Further more, the P.W.1 in his cross-examination itself has clearly stated that, his friend Srinivas was riding the Motor Cycle bearing Registration No.KA-04-EM-5470, on which, he was proceeding as a pillion rider and the said Motor Cycle was owned by the said friend and before the accident, he was riding the Motor Cycle with a speed of 30-40 kilo meters per hour and at that time, they were proceeding from Bangalore to their house. He has further stated that, the Police were shifted him and his friend to the Hospital through the offending Car. He has further clearly denied the suggestion put to him by the Respondents that, there was no negligence on the part of the offending Car bearing Registration No.KA-01-MF-6100, but, the rider of the Motor Cycle was riding it in a zig-zag manner and due to which, the alleged accident was taken place and the rider the Motor Cycle has sustained only simple injuries and since his friend was not having a valid and effective driving licence, as such, in collusion with the Police, he lodged complaint as against the driver of the offending Car.
14. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the Police, who was on duty at the accidental spot, who is an eye witness to the said accident, had lodged Ex.P.2 Complaint before the BIA Traffic Police Station, Devanahalli, as against the driver of the offending Car bearing Registration No.KA- 01-MF-6100 by alleging that, on 06.07.2013 at 5.15 p.m., the driver of the offending Car bearing Registration No.KA-01-MF-6100 was coming from Bangalore on B.B. Road with very high speed, in a rash and negligent manner, near Palya Gate had dashed to the Motor Cycle bearing Registration No.KA-04-EM-5470, which was 15 M.V.C.NO.5629/2013 (SCCH-7) also proceeding on the same direction, which was ridden by Srinivas and pillion rider Shiva Kumar.N., the Petitioner and due to the said impact, both the vehicles damaged and the rider of Motor Cycle rider and the pillion rider had sustained severe injuries on their head, hands and legs and they were shifted to Devanahalli Manasa Hospital and thereafter, shifted to M.S.Ramaiah Hospital. Based on the said Ex.P.2 Complaint, the jurisdictional Police have registered a case as against the driver of the offending Car for the offences punishable under Section 279 and 338 of IPC under Crime No.54/2013. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging the complaint in respect of the said road traffic accident.
15. The contents of Ex.P.5 Spot Hand Sketch, Ex.P.6 Spot Panchanama and Ex.P.7 MVI Report further clearly disclosed that, due to the negligent driving of the driver of the offending Car bearing Registration No.KA-01-MF-6100, who is the Respondent No.2 and due to his high speed, rash and negligent manner of driving of the offending Car itself, the said accident was taken place to the Motor Cycle bearing Registration No.KA-04-EM-5470, wherein, the Petitioner was proceeding as a pillion rider and there was no negligence on the part of the rider of the said Motor Cycle, The damages caused to both the vehicles clearly shown in Ex.P.6 MVI Report, which disclosed about the terrific impact of the said accident. It is also clearly mentioned in Ex.P.7 MVI Report that, the accident was not occurred due to any mechanical defects of the said vehicle, i.e., the Motor Cycle.
16 M.V.C.NO.5629/2013(SCCH-7)
16. The contents of Ex.P.4 Wound Certificate clearly disclosed that, with a history of accident, said to have been caused on 06.07.2013 at about 5.30 p.m., near Devanahalli, the Petitioner was admitted in M.S.Ramaiah Hospital at 9.50 p.m., on 06.07.2013 and on examination, it is found that, he had sustained the injuries, i.e., a lacerated wound 'L' shaped over posterior aspect of scalp 7 x 1 cms and 6 x 1 cms, 2 abrasions 2 X 2 cms, over fore head, 1 x 1 cms over nose, right leg 20 X 1 cms, open wound over medial aspect of leg, lower hind to below medial malleolus, bone exposed no bleeding, X-ray-open type right bimalleoour fracture ankle dislocation with tendon Achilles. From this, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained 3 simple injuries and one grievous injury.
17. The contents of Ex.P.8 Discharge Summaries 3 in numbers further clearly disclosed that, by admitting as an inpatient from 06.07.2013 to 23.07.2013, i.e., 18 days, from 21.08.2013 to 23.09.2013, i.e., 34 days and from 08.04.2014 to 11.04.2014, i.e., 4 days, in total, 56 days, the Petitioner took treatment to the said accidental injuries as an inpatient.
18. The contents of Ex.P.11 Photographs 4 in numbers and Ex.P.12 C.D. relating to Ex.P.11 Photographs further disclosed the nature of injuries and line of treatment taken by the Petitioner by admitting as an inpatient in the said Hospital.
19. The contents of Ex.P.3 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to high speed, rash and negligent manner of driving of the 17 M.V.C.NO.5629/2013 (SCCH-7) offending Car bearing Registration No.KA-01-MF-6100 by its driver, i.e., the Respondent No.1, who is also the owner of the said offending Car, the said road traffic accident was taken place on 06.07.2013 at about 5.15. p.m., on B.B Road, when he was proceeding from Bangalore in a Motor Cycle bearing Registration No.KA-04-EM-5470, which was proceeding on the same direction on its behind, wherein, the Petitioner was proceeding as a pillion rider and Srinivas was proceeding as a rider and due to the said impact, both of them fell down from the Motor Cycle and the rider of the Motor Cycle had sustained simple inquires and the Petitioner had sustained severe grievous injuries and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the Respondent No.2 for the offences punishable under Section 279, 337 and 338 of IPC. Nowhere in Ex.P.3 Charge Sheet, it is mentioned that, the negligence is on the part of the rider of the Motor Cycle bearing Registration No.KA-04-EM-5470 and it is also involved in the said road traffic accident.
20. From the above said material evidence, it is made crystal clear that, due to high speed, rash and negligent manner of driving of the offending Car bearing Registration No.KA-01-MF- 6100 by its driver itself, i.e., the Respondent No.2, the said road traffic accident was taken place, wherein, the Petitioner had sustained 3 simple injuries and one grievous injury, when he was proceeding as a pillion rider on Motor Cycle bearing Registration No.KA-04-EM-5470. To deny or to discard the same, nothing is available on record on behalf of the Respondents.
18 M.V.C.NO.5629/2013(SCCH-7)
21. Under the above said facts and circumstances as well as the reasons given, this Tribunal has come to the conclusion that, the Petitioner by adducing acceptable material evidence, both oral and documentary, has established that, the accident was occurred due to rash and negligent manner of driving of the Car bearing Registration No.KA-01-MF-6100 by its driver, i.e., the Respondent No.2 itself, the road traffic accident was taken place and in the said accident, he sustained one grievous injury and three simple injuries. Accordingly, I answered Issue No.1 in the Affirmative.
22. ISSUE NO.2 :- The Petitioner has not produced any authenticates documents to consider his age at the time of accident. Ex.P.1 FIR disclosed that, at the time of accident, the Petitioner was 43 years old. But, it is not supported by any material evidence. Ex.P.3 Charge Sheet, Ex.P.4 Wound Certificate and Ex.P.8 Discharge Summaries disclosed that, at the time of accident, the Petitioner was 48 years old. Therefore, in the absence of material evidence, based on the contents of Ex.P.3, Ex.P.4 and Ex.P.8, the age of the Petitioner is considered as 48 years at the time of accident.
23. The P.W.1 has stated that, he was working as a Supervisor and earning a salary of Rupees 8,000/- per month. He has further stated that, he was working at M.S Ramaiah Estate as a Supervisor. To consider his avocation and income at the time of accident, except his oral version, the Petitioner has not produced any authenticated documents. Even though, the Petitioner has clearly stated in his cross-examination that, he was working as a 19 M.V.C.NO.5629/2013 (SCCH-7) Supervisor at M.S.Ramaiah Estate, no scrap of paper has been produced by the Petitioner to consider the same. Further no salary slips, salary register or Bank account relating to him, are produced by the Petitioner to consider his income at the time of accident. Therefore, only based on the oral version of P.W.1, it cannot be believed and accept that, at the time of accident, the Petitioner was working as a Supervisor in M.S.Ramaiah Estate and earning a salary of Rupees 8,000/- per month. As this Tribunal has already come to the conclusion that, at the time of accident, the Petitioner was 48 years old. It discloses that, the Petitioner is having a family with wife and children. By considering the age of the Petitioner and his family status, this Tribunal feels that, it is just, proper and necessary to consider the income of the Petitioner is of Rupees 6,000/- per month, which is considerable and believable one. Hence, the notional income of the Petitioner is considered as Rupees 6,000/- per month at the time of accident.
24. The P.W.1 has stated that, he took treatment as an inpatient for about 15 days and multiple operations, i.e., wound debridement, TA repair, TBW medual malleolus, external fixation with K-wire of lateral malleolus were done and after discharge from the Hospital, he was on bed rest as per the advise of the Doctor. He has further stated that, he got admitted to the same Hospital on 21.08.2013 and underwent 3 more operations, like, removal of external fixator, wound debridement on 26.08.2013 and one more wound debridement on 08.09.2013 and SSG was done on 10.09.2013. He has further stated that, on 08.04.2014, he got admitted to the same M.S.Ramaiah Hospital for the 3rd time and 20 M.V.C.NO.5629/2013 (SCCH-7) underwent an operation of removal of implants on 09.04.2014 and got discharged on 11.04.2014 and he took bed rest for a period of 6 months as advised by the Doctor.
25. As this Tribunal has already observed and come to the conclusion based on Ex.P.4 Wound Certificate, Ex.P.8 Discharge Summaries, Ex.P.11 Photographs and Ex.P.12 C.D. that, in the said road traffic accident, the Petitioner had sustained 3 simple injuries and one grievous injury and by admitting as an inpatient from 06.07.2013 to 23.07.2013, i.e., 18 days, from 21.08.2013 to 23.09.2013, i.e., 34 days and from 08.04.2014 to 11.04.2014, i.e., 4 days, in total, 56 days, the Petitioner took treatment to the said accidental injuries as an inpatient in M.S.Ramaiah Hospital. The nature of injuries sustained by the Petitioner in the said accident as well as the line of treatment taken by him in the Hospital by admitting as an inpatient are clear from Ex.P.11 Photographs and Ex.P.12 C.D. In Ex.P.8 Discharge Summaries, it is clearly mentioned that, wound debridement on 06.07.2013 + TA repair +TBW Medial malleolus external fixation with k-wire of lateral malleolus done with review after 2 weeks in Ortho III OPD and implants removal on 09.04.2014. The said evidence of P.W.1 is clearly corroborated with the contents of Ex.P.8 Discharge Summaries.
26. Since by admitting as an inpatient for three times, the Petitioner took proper and required treatment in M.S.Ramaiah Hospital as per the advise of the Doctors and since, he was treated with implants and underwent surgery and has taken follow-up 21 M.V.C.NO.5629/2013 (SCCH-7) treatment and bed rest as per the advise of Doctors, who have treated him. By admitting as an inpatient from 08.04.2014 to 11.04.2014, the Petitioner was underwent an operation for removal of implants. Even thereafter, he required bed rest and follow-up treatment as per the advise of the Doctors and as such, the same is also believed and accept.
27. The P.W.1 has stated that, he has lost his earnings all over that period of treatment and he is still taking treatment as an out patient. He has further stated that, now because of this accident, he has become disabled to do his regular kind of work. He has further stated that, he was hale and healthy at the time of accident, but, now because of this accident, he has become disabling and not in a condition to work as he was doing before and even today, the wounds are not healed. He has further stated that, he is not able to use his right leg comfortably and cannot twist his right ankle to any side and the movements of his right ankle is fully restricted and hence, he cannot put his right foot properly while walking. He has further stated that, as a Supervisor at estate, he has to roam around the estate, which is full of uneven surface and hence, it would not be possible for him to continue in the job and hence, he is terminated from the job permanently and now, he is jobless and does not have any income and lost his bread permanently due to this accident. He has further stated that, because of this accident, he cannot lift the right leg and cannot bend it and he cannot bear weight on it and he limps while walking and he cannot fold his right leg as he gets pain and he tired to fold it and now, he is not able to lead his normal life as he was doing 22 M.V.C.NO.5629/2013 (SCCH-7) before. He has further stated that, he was a Supervisor in M.S.Ramaiah Estate and he has to attend the same on daily basis in order to feed himself and his family and his work needs him using both the legs and do the work standing and roaming all over the estate, which is not possible to him due to this accident and totally his right leg has become useless, which cannot be compensated to him in any manner. He has further stated that, he gets frequent severe pain at his right ankle and right leg even though for which, he took treatment, he cannot sleep at night due to the said pain, he cannot stretch the right leg comfortably and he is not in a condition to work as he was doing the same before.
28. The Petitioner has also examined the Doctor as P.W.2, who has stated in his examination-in-chief about the nature of injuries sustained by the Petitioner in the said road traffic accident as well as the line of treatment taken by the Petitioner to the said accidental injuries by him as an inpatient in M.S.Ramaiah Hospital and also removal of implants based on the Wound Certificate and discharge summaries, which were given to him at the time of assessment of disability of the Petitioner. He has further stated that, on 30.01.2015, he has examined the Petitioner clinically and radiologically as to the assessment of his disabilities and the Petitioner complaints of pain and difficulty in walking and climbing stairs. He has further stated that, he gives history of inability to squat and sit cross-legged. He has further stated that, on examination, the Petitioner walks with pain and limping, scarring and Keloid formation over right thigh SSG done site, surgical scars plus scars due to secondary heeling are seen over right ankle and 23 M.V.C.NO.5629/2013 (SCCH-7) TA area, wasting of the right lower limb is seen. He has further stated that, his recent X-ray shows mal-united fractures. By considering the range of movements in respect of left and right side of ankle, calf, loss of muscle power of right ankle, mobility component and stability component, the P.W.2 has stated that, the total disability of the right lower limb is 44%, that of the whole body as 22%, which is permanent. He has further stated that, the Petitioner has stated that, he was doing Supervisor work in a Private Estate and the said disability will come in the way of his work. He has further stated that, he has followed the Central Government Guidelines before assessing the said disabilities. The P.W.2 has produced Ex.P.13 OPD Slip and Ex.P.14 X-ray film with receipt.
29. But, based on the said oral version of P.W.1 and P.W.2 coupled with the contents of Ex.P.13 and Ex.P.14, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from permanent physical disability of 21% to the whole body, as, the P.W.1 is not a treated Doctor. In this regard, the P.W.2 in his cross-examination has clearly stated that, earlier to 30.01.2015, the Petitioner had not come before him for any treatment. Further, the Petitioner has not proved his avocation and income at the time of accident. Further, though the P.W.2 in his examination-in-chief has stated that, Ex.P.14 is the recent X- ray film, which shows mal-united fractures, the same has not been mentioned in Ex.P.14 X-ray film, wherein, the report fixed itself. In this regard, the P.W.2 has stated in his cross-examination that, the report of the Ex.P.14 X-ray film is written on its cover itself and he 24 M.V.C.NO.5629/2013 (SCCH-7) has gone through the said report and as per the said report, the old healed fractures and the word 'malunited' is strike out on the said cover. On perusal of the cover of Ex.P.14 X-ray film, it clearly disclosed that, old case of bimalleolar fracture, post implant removal status, shows old healed fracture in lower shat of fibula. From this, it is made crystal cleat that, the fractures relating to the Petitioner are not mal-united, but, they are healed, which is clear from the recent Ex.P.14 X-ray film with report and receipt. No doubt, the P.W.2 in his cross-examination has stated that, according to him, if the Petitioner is doing his job, it would be some difficulty. He has not disclosed that, the extent of the said difficulties would be 22% to the whole body and it cannot be reduced. Further, the disability certificate issued by the competent Doctor is not produced by the Petitioner. Even he did not examine the treated Doctor. No doubt, the P.W.1 in his cross-examination has denied the suggestion put to him that, the injuries sustained by him in the alleged accident is already recovered and he has no difficulties at all. But, to consider the same, except the oral version of P.W.2, who is not a treated Doctor, no authenticated medical document is produced. Further more, Ex.P.14 X-ray film and report clearly disclosed that, the fracture is already healed. Therefore, the said extent of permanent physical disability as stated by the P.W.2, i.e., 22% to the whole body cannot be believed and accept and it is on higher side.
30. However, in the said road traffic accident, the Petitioner has sustained 3 simple injuries and one grievous injury and by admitting as an inpatient for 56 days, he took treatment to the said 25 M.V.C.NO.5629/2013 (SCCH-7) accidental injuries at M.S.Ramaiah Hospital and the age of the Petitioner was 48 years at the time of accident. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability to some extent, which comes in the way of his future life to do his day to day work. Therefore, due to the said accidental injuries, the Petitioner is definitely suffering from permanent physical and functional disability to some extent. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 10% to the whole body, which is believable and acceptable one.
31. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 10% to the whole body. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 10%.
32. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 48 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 13.
33. As the Petitioner is suffering from permanent physical and functional disability of 10% to the whole body. The notional income of the Petitioner is already considered as Rupees 6,000/-
26 M.V.C.NO.5629/2013(SCCH-7) per month. Therefore, the loss arising out of the said 10% disability for monthly income of Rupees 6,000/- by applying multiplier 13 would comes to Rupees 93,600/-, i.e., (Rs.6,000/- x 12 x 13 x 10%).
34. As per Ex.P.4 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained 3 simple injuries and one grievous injury. The Petitioner was in the Hospital as an inpatient from 06.07.2013 to 23.07.2013, i.e., 18 days, from 21.08.2013 to 23.09.2013, i.e., for 34 days and from 08.04.2014 to 11.04.2014, i.e., for 4 days, in total, 56 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 50,000/- towards pain and suffering.
35. As it is already observed that, the age of the Petitioner was 48 years. He has to lead remaining his entire life with 10% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 10,000/- towards loss of amenities of life to the Petitioner.
36. The Petitioner had sustained 3 simple injuries and one grievous injury and he was in the Hospital as an inpatient for 56 days and he could not do any work at least for 8 months and thereby, he deprived the income. Therefore, at the rate of Rupees 6,000/- per month, a sum of Rupees 48,000/- is awarded towards loss of income during the laid up period.
27 M.V.C.NO.5629/2013(SCCH-7)
37. The P.W.1 has stated that, he has spent more than a sum of Rupees 1,00,000/- towards medical and other allowances and as he was working at M.S.Ramaiah Estate as a Supervisor, the Hospital Authority has given him a free treatment, but, the medical expenses and other allowances, like, food and nourishment, transportation, attendant charges, etc., were paid by him only, which amounts to a sum of Rupees 1,00,000/-.
38. The Petitioner has produced Ex.P.9 Medical Bills 40 in numbers, which is amounting of Rupees 20,358/- and Ex.P.10 Medical Prescriptions 6 in numbers. The Petitioner has taken treatment at M.S.Ramaiah Hospital, wherein, he was taken treatment as an inpatient 06.07.2013 to 23.07.2013, i.e., 18 days, from 21.08.2013 to 23.09.2013, i.e., for 34 days and from 08.04.2014 to 11.04.2014, i.e., for 4 days, in total, 56 days. Considering the nature of the injury and line of treatment given to him, the possibility of spending the said amount for the medicines can not be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 20,358/-.
39. The P.W.1 and P.W.2 have not stated anything about the future medical assistance and its expenses, which requres to the Petitioner. It is clear from the oral version of P.W.1 and contents of Ex.P.8 Discharge Summaries that, on 09.04.2014, the implants are removed. Hence, the Petitioner is not entitled for any compensation towards future medical expenses.
40. As the Petitioner was taken treatment as an inpatient for 56 days, it is necessary to award a sum of Rupees 10,000/-
28 M.V.C.NO.5629/2013(SCCH-7) towards conveyance charges, Rupees 10,000/- towards attendant charges and Rupees 15,000/- towards food, nourishment and diet charges etc.,
41. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. Rs. 93,600-00 arising out of 10% Disability
2. Pain and sufferings Rs. 50,000-00
3. Loss of amenities of life Rs. 10,000-00 Loss of income during laid up
4. Rs. 48,000-00 period
5. Actual medical expenses Rs. 20,358-00
6. Conveyance Rs. 10,000-00
7. Attendant Charges Rs. 10,000-00 Food, Nourishment &
8. Rs. 15,000-00 Diet charges TOTAL Rs. 2,56,958-00
42. In all, the Petitioner is entitled for total compensation of Rupees 2,56,958/- along with interest at the rate of 6% per annum on the above said sum from the date of Petition till payment.
43. The P.W.1 has stated that, the vehicle was duly insured with the Respondent No.1 and hence, the Respondents being the insurer and insured are jointly and severally liable to pay the compensation to him.
44. While answering Issue No.1, this Tribunal has already come to the conclusion that, the offending Car bearing Registration 29 M.V.C.NO.5629/2013 (SCCH-7) No.KA-01-MF-6100 as well as its driver, i.e., Respondent No.2, are very much involved in the said road traffic accident, wherein, the Petitioner had sustained 3 simple injuries and one grievous injury, which was taken place only due to the negligence on the part of Respondent No.2 himself. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.1 is an insurer and the Policy No.3001/71/71336202/01/000. It is clearly mentioned in Ex.P.3 Charge Sheet that, the Respondent No.2 was a registered owner of the offending Car bearing Registration No.KA- 01-MF-6100, who was also driving the said offending vehicle at the time of accident. Further, both the Respondents No.1 and 2 in their written statement have clearly admitted that, the Respondent No.2 was a R.C. Owner of the said offending Car and it was insured with the Respondent No.1 vide Policy No.3001/71/71336202/01/000, valid from 14.05.2013 to 13.05.2014, which was in force as on the date of accident. On perusal of the said materials available on record, it clearly goes to show that, at the time of accident, the Respondent No.1 was an insurer and the Respondent No.2 was a registered owner of the offending Car bearing Registration No.KA- 01-MF-6100 and at the time of accident, the Respondent No.2 himself was driving the said offending Car. There is no allegation leveled as against the Respondent No.2 in Ex.P.3 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive such class of vehicle. The violation of the terms and conditions of the admitted Insurance Policy relating to the offending Car by the Respondent No.2 is not proved by the Respondent No.1. Under such circumstances, the Respondent No.1 being an Insurer and the Respondent No.2 being a R.C. Owner of 30 M.V.C.NO.5629/2013 (SCCH-7) the offending Car bearing Registration No.KA-01-MF-6100, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since the Respondent No.1 is an insurer, it shall indemnify the Respondent No.2. Hence, Issue No.2 is answered accordingly.
45. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 2,56,958,/- with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation
and interest, entire amount shall be
released in the name of Petitioner through
31 M.V.C.NO.5629/2013
(SCCH-7)
account payee cheque, on proper
identification.
Advocate's fee is fixed at Rupees
1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 7th day of September, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. Shivakumar.N
P.W.2 : Dr. S.A.Somashekar
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Charge Sheet
Ex.P.4 : True copy of Wound Certificate
Ex.P.5 : True copy of Spot Hand Sketch
Ex.P.6 : True copy of Spot Panchanama
Ex.P.7 : True copy of MVI Report
Ex.P.8 : Discharge Summary
Ex.P.9 : Medical Bills (40 in Nos.)
32 M.V.C.NO.5629/2013
(SCCH-7)
Ex.P.10 : Medical Prescriptions (6 in Nos.)
Ex.P.11 : Photographs (4 in numbers)
Ex.P.12 : CD Relating to Ex.P.11 Photographs
Ex.P.13 : OPD Slip
Ex.P.14 : X-ray Films with Receipt
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.