Bangalore District Court
Just To Avail Undue Advantage. In View Of ... vs No.2 Is The Owner Of The Vehicle In ... on 4 August, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 4th day of August, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),LL.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.2730/2014
C/w. M.V.C.No.2731/2014 and M.V.C.No.2732/2014
1. Sri. Jayadevachar, ..... PETITIONERS IN
S/o. Kalachar, M.V.C.No.2730/2014
Aged about 60 years.
Bangalore - 37.
2. Smt. Poornima,
D/o. Jayadevachar,
Aged about 25 years.
Both are R/at;
No.9/1, Narayanappa Compound,
1st Cross, Mallathalli,
Bangalore - 560 056.
(By Sri. P. Ramakrishna, Adv.,)
V/s
1. Reliance General Insurance ..... RESPONDENTS IN
Company Ltd., M.V.C.No.2730/2014
No.21, 5th Floor,
Centenary Building,
M.G. Road,
Bangalore - 560 001.
SCCH-7 2 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
(Policy No.1409732340000366, Validity
from 19.10.2013 to 18.10.2014)
2. Mr. Ashwatha,
S/o. Lakkaiah,
Someshwara Colony,
Magadi Town,
Ramanagar (Dist.)
(R-1 By Sri. K.M. Ravi, Adv.,)
(R-2 By Sri. G.V. Dayananda, Adv.,)
Sri. B.T. Narasimha Murthy @
..... PETITIONER IN
Narasimha Murthy,
M.V.C.No.2731/2014
S/o. Thammanna Shetty,
R/at No.126, 2nd Main,
4th Cross, Kavirapura,
Near Nanda Gokula Road,
Kamakshipalya,
Bangalore.
(By Sri. P. Ramakrishna, Adv.,)
V/s
1. Reliance General Insurance ..... RESPONDENTS IN
Company Ltd., M.V.C.No.2731/2014
No.21, 5th Floor,
Centenary Building,
M.G. Road,
Bangalore - 560 001.
(Policy No.1409732340000366, Validity
from 19.10.2013 to 18.10.2014)
2. Mr. Ashwatha,
S/o. Lakkaiah,
SCCH-7 3 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Someshwara Colony,
Magadi Town,
Ramanagar (Dist.)
(R-1 By Sri. K.M. Ravi, Adv.,)
(R-2 By Sri. G.V. Dayananda, Adv.,)
Sri. Anjanappa @ Anjaneya, ..... PETITIONER IN
S/o. Kariyappa, M.V.C.No.2732/2014
Aged 41 years,
R/at No.65/4,
Old NO.80, Kaveripura,
Kamakshipalya,
Basaveshwaranagara,
Bangalore - 79.
(By Sri. P. Ramakrishna, Adv.,)
V/s
1. Reliance General Insurance
Company Ltd., ..... RESPONDENTS IN
No.21, 5th Floor, M.V.C.No.2732/2014
Centenary Building,
M.G. Road,
Bangalore - 560 001.
(Policy No.1409732340000366, Validity
from 19.10.2013 to 18.10.2014)
2. Mr. Ashwatha,
S/o. Lakkaiah,
Someshwara Colony,
Magadi Town,
Ramanagar (Dist.)
(R-1 By Sri. K.M. Ravi, Adv.,)
(R-2 By Sri. G.V. Dayananda, Adv.,)
SCCH-7 4 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
COMMON JUDGMENT
As per the Order dated 06.02.2015 passed on Memo in
M.V.C.No.2730/2014, M.V.C.No.2731/2014 and
M.V.C.No.2732/2014 are clubbed with the said
M.V.C.No.2730/2014 and the common evidence is recorded in the
said case. Hence, M.V.C.No.2730/2014, M.V.C.No.2731/2014 and
M.V.C.No.2732/2014 are pending for consideration and disposal
before this Tribunal by passing a common Judgment.
2. The Petitioners in M.V.C.No.2730/2014 has filed the
said petition as against the Respondents No.1 and 2 under Section
166 of the Motor Vehicles Act, 1989, praying to award
compensation of Rupees 20,00,000/- with interest at the rate of
12% p.a., in respect of death of Smt.Lakshmamma W/o.
Jayadevachar.
3. The brief averments of the Petitioners' case in M.V.C.
No.2730/2014 are as follows;
a) On 04.05.2014 at about 5.30 p.m., the deceased
Lakshmamma was going in a Bus as a Passenger in the Private
Bus bearing Registration No.KA-11-7303 and the driver of the Bus
driven the same in a rash and negligent manner without observing
the traffic rules and regulations at an high speed. At that time, all
of a sudden lost the control over the Bus near Vengalappanahalli
and Maralagondala Road Bridge, Magadi - Bangalore Road, due to
that, the Bus was turtle to the left side of road.
SCCH-7 5 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
b) Due to that accident, the deceased Lakshmamma was
seriously injured and other two are also died in the spot.
Immediately, she has been shifted to the General Hospital,
Magadi. Inspite of best treatment given by the Doctors, the
deceased was succumbed to the injuries in the said Hospital. The
Postmortem was conducted by the duty Doctors and thereafter,
the dead body was handed over to them, who performed the
funeral and obsequies by spending Rupees 50,000/- for the same
and also Rupees 20,000/- towards transportation of the dead
body to Bangalore.
c) Before to the accident, the deceased was a Factory
Worker and earning Rupees 12,000/- p.m.
d) The deceased was hale and healthy prior to the
accident and she was not having any bad habits. The deceased
was one of the earning members of the family and all the members
of the family were depending upon the earning of the deceased.
e) The cause of the accident was occurred due to the rash
and negligent driving by the driver of the Bus bearing Registration
No.KA-11-7303. In this regard, the case has been registered at
Magadi Police Station in Crime No.118/14 under Section 279, 337
and 304(A).
f) The Respondent No.1 is the insurer and the
Respondent No.2 is the owner of the vehicle in question. Hence,
SCCH-7 6 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
both the Respondents are jointly and severally liable to pay the
compensation to them. Hence, this petition.
4. Initially, though the notice was duly served on the
Respondent No.1, it was remained absent and hence, it was
placed as exparte on 26.08.2014. Later, the Respondent No.1 has
appeared before this Tribunal through its Learned Counsel and as
per the Order dated 11.09.2014 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 08.12.2014 passed on I.A.No.II, the written statement filed
by the Respondent No.1 is taken on file.
5. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through his Learned Counsel and
has filed the written statement.
6. The Respondent No.1 inter-alia denying the entire case
of the Petitioners in M.V.C.No.2730/2014, has further contended
as follows;
a) All the material allegations made in the claim petition
are false and the petition is not maintainable either on facts are in
law against it.
b) It has issued the policy in respect of the Bus bearing
Registration No.KA-11-7303, but, the original copy of the policy is
SCCH-7 7 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
in the possession and control of the Respondent No.2. It hereby
calls upon the Respondent No.2 to produce the original policy. The
liability if any of it, is limited to the terms and conditions of the
policy of insurance issued, which is in accordance with the
provisions of Motor Vehicles Act.
c) The person driving the vehicle has 'no relation in force'
as on the date of accident to drive the vehicle.
d) The driver of the insured vehicle has no valid and
effective driving licence to drive the Bus at the time of accident.
The owner of the vehicle knowingly entrusted the vehicle to a
person, who was not having valid and effective driving licence to
drive the Bus, in violation of the policy condition, hence, this is a
willful breach of policy condition of the owner of the insured
vehicle and hence, it is not liable to pay any compensation.
e) The insured Bus bearing Registration No.KA-11-7303
was issued without having valid permit and fitness certificate.
Using the vehicle in a public place without valid permit and fitness
certificate is a clear violation of the policy condition and also
against to the provisions of the Motor Vehicles Act and hence, it is
not liable to pay any compensation.
f) It seeks protection under the Section 147 and 149 of
M.V. Act.
SCCH-7 8 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
g) As per Section 134(c) of M.V. Act, 1988, it is
mandatory duty of the owner of the vehicle to furnish the
particulars of policy, date, time and place of accident, particulars
of injured and the name of the driver and particulars of the driving
licence, but, the owner of the Tata Sumo has not complied with
statutory demand. Hence, it is not liable to pay any compensation.
h) As per Section 158(6) of M.V. Act, 1988, it is a
mandatory duty of the concerned P.S. to forward all the relevant
documents to the concerned insurer within 30 days from the date
of the information, but, the Magadi Police have failed to forward
the documents and not complied with the statutory demand.
i) The Petitioner is not entitled to claim any interest on
non-pecuniary damages as per the Judgment reported in 1995
ACJ (1) page 366.
j) The instant petition filed by the Petitioner is false,
malicious, incorrect and malafide and is nothing, but, an abuse of
the process of the law and it is an attempt to waste the precious
time of this Hon'ble Forum, as, the same has been filed by the
Petitioners just to avail undue advantage. In view of the above, it
is clear that, the Petitioners have not approached this Hon'ble
Court with clean hands and with true facts and they trying to
mislead this Hon'ble Court.
k) It craves of this Hon'ble Court to take all defences
available to the Owner of the vehicle under Section 170 of M.V.
SCCH-7 9 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Act and to contest the case on all the grounds apart from those
specified U/s 149(2) of M.V. Act, in case, the owner of the insured
vehicle remains exparte.
l) It craves the leave of this Hon'ble Court to file an
additional counter at a later stage as and when the better
particulars come to its knowledge.
m) Without prejudice to the above contentions, the
amount of Rupees 20,00,000/- with interest and costs claimed by
the Petitioners in the petition is more excessive, exorbitant and
exaggerated. Hence, prayed to dismiss the petition with costs,
else, its Company will be put to irreparable loss and injury.
7. The Respondent No.2 inter-alia denying the entire case
of the Petitioners in M.V.C.No.2730/2014, has further contended
as follows;
a) The averments made in Para 9 that, Devanahalli Police
Station have filed FIR in Crime No.46/2011 U/s 279, 337 and
304-A IPC as against his driver may be true.
b) The deceased was proceedings in the Bus of him is
true.
c) The amount of compensation claimed Rupees
20,00,000/- is exorbitant, arbitrary and fanciful and Petitioners
are not entitled to any compensation by this Hon'ble Court.
SCCH-7 10 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
d) There was no such accident alleged to be caused by his
driver on the date, day and month and in order to claim
compensation, a false complaint lodged as against his driver. The
Magadi Police Station filed Charge Sheet in Crime No.118/2014.
e) No doubt, his vehicle is insured with the Respondent
No.1 and the policy was in force on the date of accident bearing
Policy No.1409732340000366, valid from 19.10.2013 to
18.10.2014, the Respondent No.2 indemnified to meet the risk,
but, both they are not liable to pay any compensation, because
the accident was caused due to negligence of the deceased
Krishnamurhty himself. Hence, prayed to dismiss the petition.
8. The Petitioner in M.V.C.No.2731/2014 has filed the
said petition as against the Respondents No.1 and 2 under Section
166 of the Motor Vehicles Act, 1989, praying to award
compensation of Rupees 8,00,000/- with interest at the rate of
12% p.a. from the date of the petition till realisation.
9. The brief averments of the Petitioner's case in M.V.C.
No.2731/2014 are as follows;
a) On 04.05.2014 at about 5.30 p.m., he was going in a
Private Bus bearing Registration No.KA-11-7303 as a passenger
and the driver of the Bus driven the same in a rash and negligent
manner without observing the traffic rules and regulations at an
high speed. At that time, all of a sudden, lost the control over the
Bus near Vengalappanahalli and Maralagondala Road Bridge,
SCCH-7 11 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Magadi - Bangalore Road, due to that, the Bus was turtle to the
left side of road.
b) Due to that accident, he was seriously injured on leg,
head and hand and other parts of the body. Immediately, he was
shifted to the General Hospital for first-aid and further shifted to
KIMS Hospital, Bangalore, for better treatment, wherein, he was
admitted as an inpatient. It was diagnosed that, he had sustained
injuries to right ankle, shoulder and other parts of the body.
c) He was treated for the same and he has spent Rupees
50,000/- towards medical, conveyance and nourishment
expenses.
d) Before to the accident, he was working as a Tailor and
earning Rupees 12,000/- p.m. After the said accident, he is not
able to do his work as earlier and suffering heavy loss of income.
e) The cause of the accident was occurred due to the rash
and negligent driving by the driver of the Bus bearing Registration
No.KA-11-7303. In this regard, the case has been registered at
Magadi Police Station in Crime No.118/14 under Section 279, 337
and 304(A).
f) The Respondent No.1 is the insurer and the
Respondent No.2 is the owner of the vehicle in question. Hence,
both the Respondents are jointly and severally liable to pay the
compensation to him. Hence, this petition.
SCCH-7 12 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
10. Initially, though the notice was duly served on the
Respondent No.1, it was remained absent and hence, it was
placed as exparte on 26.08.2014. Later, the Respondent No.1 has
appeared before this Tribunal through its Learned Counsel and as
per the Order dated 11.09.2014 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 08.12.2014 passed on I.A.No.II, the written statement filed
by the Respondent No.1 is taken on file.
11. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through his Learned Counsel and
has filed the written statement.
12. The Respondent No.1 inter-alia denying the entire case
of the Petitioner in M.V.C.No.2731/2014, has further contended
as follows;
a) All the material allegations made in the claim petition
are false and the petition is not maintainable either on facts are in
law against it.
b) It has issued the policy in respect of the Bus bearing
Registration No.KA-11-7303, but, the original copy of the policy is
in the possession and control of the Respondent No.2. It hereby
calls upon the Respondent No.2 to produce the original policy. The
liability if any of it, is limited to the terms and conditions of the
SCCH-7 13 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
policy of insurance issued, which is in accordance with the
provisions of Motor Vehicles Act.
c) The person driving the vehicle has 'no relation in force'
as on the date of accident to drive the vehicle.
d) The driver of the insured vehicle has no valid and
effective driving licence to drive the Bus at the time of accident.
The owner of the vehicle knowingly entrusted the vehicle to a
person, who was not having valid and effective driving licence to
drive the Bus, in violation of the policy condition, hence, this is a
willful breach of policy condition of the owner of the insured
vehicle and hence, it is not liable to pay any compensation.
e) The insured Bus bearing Registration No.KA-11-7303
was issued without having valid permit and fitness certificate.
Using the vehicle in a public place without valid permit and fitness
certificate is a clear violation of the policy condition and also
against to the provisions of the Motor Vehicles Act and hence, it is
not liable to pay any compensation.
f) It seeks protection under the Section 147 and 149 of
M.V. Act.
g) As per Section 134(c) of M.V. Act, 1988, it is
mandatory duty of the owner of the vehicle to furnish the
particulars of policy, date, time and place of accident, particulars
of injured and the name of the driver and particulars of the driving
SCCH-7 14 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
licence, but, the owner of the Tata Sumo has not complied with
statutory demand. Hence, it is not liable to pay any compensation.
h) As per Section 158(6) of M.V. Act, 1988, it is a
mandatory duty of the concerned P.S. to forward all the relevant
documents to the concerned insurer within 30 days from the date
of the information, but, the Magadi Police have failed to forward
the documents and not complied with the statutory demand.
i) The Petitioner is not entitled to claim any interest on
non-pecuniary damages as per the Judgment reported in 1995
ACJ (1) page 366.
j) The instant petition filed by the Petitioner is false,
malicious, incorrect and malafide and is nothing, but, an abuse of
the process of the law and it is an attempt to waste the precious
time of this Hon'ble Forum, as, the same has been filed by the
Petitioners just to avail undue advantage. In view of the above, it
is clear that, the Petitioner has not approached this Hon'ble Court
with clean hands and with true facts and he is trying to mislead
this Hon'ble Court.
k) It craves of this Hon'ble Court to take all defences
available to the Owner of the vehicle under Section 170 of M.V.
Act and to contest the case on all the grounds apart from those
specified U/s 149(2) of M.V. Act, in case, the owner of the insured
vehicle remains exparte.
SCCH-7 15 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
l) It craves the leave of this Hon'ble Court to file an
additional counter at a later stage as and when the better
particulars come to its knowledge.
m) Without prejudice to the above contentions, the
amount of Rupees 8,00,000/- with interest and costs claimed by
the Petitioner in the petition is more excessive, exorbitant and
exaggerated. Hence, prayed to dismiss the petition with costs,
else, its Company will be put to irreparable loss and injury.
13. The Respondent No.2 inter-alia denying the entire case
of the Petitioner in M.V.C.No.2731/2014, has further contended
as follows;
a) The averments made in Para 9 that, Devanahalli Police
Station have filed FIR in Crime No.46/2011 U/s 279, 337 and
304-A IPC as against his driver may be true.
b) The Petitioner was proceeding in the Bus of him is
true.
c) The amount of compensation claimed Rupees
8,00,000/- is exorbitant, arbitrary and fanciful and Petitioner is
not entitled to any compensation by this Hon'ble Court.
d) There was no such accident alleged to be caused by his
driver on the date, day and month and in order to claim
compensation, a false complaint lodged as against his driver. The
Magadi Police Station filed Charge Sheet in Crime No.118/2014.
SCCH-7 16 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
e) No doubt, his vehicle is insured with the Respondent
No.1 and the policy was in force on the date of accident bearing
Policy No.1409732340000366, valid from 19.10.2013 to
18.10.2014, the Respondent No.2 indemnified to meet the risk,
but, both they are not liable to pay any compensation, because
the accident was caused due to negligence of the deceased
Krishnamurhty himself. Hence, prayed to dismiss the petition.
14. The Petitioner in M.V.C.No.2732/2014 has filed the
said petition as against the Respondents No.1 and 2 under Section
166 of the Motor Vehicles Act, 1989, praying to award
compensation of Rupees 10,00,000/- with interest at the rate of
12% p.a. from the date of the petition till relaisation.
15. The brief averments of the Petitioner's case in M.V.C.
No.2732/2014 are as follows;
a) On 04.05.2014 at about 5.30 p.m., he was going in a
Private Bus bearing Registration No.KA-11-7303 as a passenger
and the driver of the Bus driven the same in a rash and negligent
manner without observing the traffic rules and regulations at an
high speed. At that time, all of a sudden lost the control over the
Bus near Vengalappanahalli and Maralagondala Road Bridge,
Magadi - Bangalore Road, due to that, the Bus was turtle to the
left side of road.
b) Due to that accident, he was seriously injured to left
leg and other parts of the body. Immediately, he was shifted to
SCCH-7 17 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Ashraya Hospital for first-aid and further treatment at E.S.I.
Hospital and again, he was shifted to M.S. Ramaiah Hospital for
better treatment. It was diagnosed that, he had suffered
comminuted fracture neck of femur left and other parts of the
body.
c) He was treated for the same and he has spent Rupees
60,000/- towards medical, conveyance and nourishment
expenses.
d) Before to the accident, the he was working as a
Supervisor and getting salary of Rupees 15,000/- p.m. After the
said accident, he was unable to do the normal work as before and
suffering heavy loss of income.
e) The cause of the accident was occurred due to the rash
and negligent driving by the driver of the Bus bearing Registration
No.KA-11-7303. In this regard, the case has been registered at
Magadi Police Station in Crime No.118/14 under Section 279, 337
and 304(A).
f) The Respondent No.1 is the insurer and the
Respondent No.2 is the owner of the vehicle in question. Hence,
both the Respondents are jointly and severally liable to pay the
compensation to them. Hence, this petition.
16. Initially, though the notice was duly served on the
Respondent No.1, it was remained absent and hence, it was
SCCH-7 18 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
placed as exparte on 26.08.2014. Later, the Respondent No.1 has
appeared before this Tribunal through its Learned Counsel and as
per the Order dated 11.09.2014 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 08.12.2014 passed on I.A.No.II, the written statement filed
by the Respondent No.1 is taken on file.
17. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through his Learned Counsel and
has filed the written statement.
18. The Respondent No.1 inter-alia denying the entire case
of the Petitioner in M.V.C.No.2732/2014, has further contended
as follows;
a) All the material allegations made in the claim petition
are false and the petition is not maintainable either on facts are in
law against it.
b) It has issued the policy in respect of the Bus bearing
Registration No.KA-11-7303, but, the original copy of the policy is
in the possession and control of the Respondent No.2. It hereby
calls upon the Respondent No.2 to produce the original policy. The
liability if any of it, is limited to the terms and conditions of the
policy of insurance issued, which is in accordance with the
provisions of Motor Vehicles Act.
SCCH-7 19 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
c) The person driving the vehicle has 'no relation in force'
as on the date of accident to drive the vehicle.
d) The driver of the insured vehicle has no valid and
effective driving licence to drive the Bus at the time of accident.
The owner of the vehicle knowingly entrusted the vehicle to a
person, who was not having valid and effective driving licence to
drive the Bus, in violation of the policy condition, hence, this is a
willful breach of policy condition of the owner of the insured
vehicle and hence, it is not liable to pay any compensation.
e) The insured Bus bearing Registration No.KA-11-7303
was issued without having valid permit and fitness certificate.
Using the vehicle in a public place without valid permit and fitness
certificate is a clear violation of the policy condition and also
against to the provisions of the Motor Vehicles Act and hence, it is
not liable to pay any compensation.
f) It seeks protection under the Section 147 and 149 of
M.V. Act.
g) As per Section 134(c) of M.V. Act, 1988, it is
mandatory duty of the owner of the vehicle to furnish the
particulars of policy, date, time and place of accident, particulars
of injured and the name of the driver and particulars of the driving
licence, but, the owner of the Tata Sumo has not complied with
statutory demand. Hence, it is not liable to pay any compensation.
SCCH-7 20 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
h) As per Section 158(6) of M.V. Act, 1988, it is a
mandatory duty of the concerned P.S. to forward all the relevant
documents to the concerned insurer within 30 days from the date
of the information, but, the Magadi Police have failed to forward
the documents and not complied with the statutory demand.
i) The Petitioner is not entitled to claim any interest on
non-pecuniary damages as per the Judgment reported in 1995
ACJ (1) page 366.
j) The instant petition filed by the Petitioner is false,
malicious, incorrect and malafide and is nothing, but, an abuse of
the process of the law and it is an attempt to waste the precious
time of this Hon'ble Forum, as, the same has been filed by the
Petitioners just to avail undue advantage. In view of the above, it
is clear that, the Petitioner has not approached this Hon'ble Court
with clean hands and with true facts and he is trying to mislead
this Hon'ble Court.
k) It craves of this Hon'ble Court to take all defences
available to the Owner of the vehicle under Section 170 of M.V.
Act and to contest the case on all the grounds apart from those
specified U/s 149(2) of M.V. Act, in case, the owner of the insured
vehicle remains exparte.
l) It craves the leave of this Hon'ble Court to file an
additional counter at a later stage as and when the better
particulars come to its knowledge.
SCCH-7 21 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
m) Without prejudice to the above contentions, the
amount of Rupees 10,00,000/- with interest and costs claimed by
the Petitioner in the petition is more excessive, exorbitant and
exaggerated. Hence, prayed to dismiss the petition with costs,
else, its Company will be put to irreparable loss and injury.
19. The Respondent No.2 inter-alia denying the entire case
of the Petitioner in M.V.C.No.2732/2014, has further contended
as follows;
a) The averments made in Para 9 that, Devanahalli Police
Station have filed FIR in Crime No.46/2011 U/s 279, 337 and
304-A IPC as against his driver may be true.
b) The Petitioner was proceeding in the Bus of him is
true.
c) The amount of compensation claimed Rupees
10,00,000/- is exorbitant, arbitrary and fanciful and Petitioner is
not entitled to any compensation by this Hon'ble Court.
d) There was no such accident alleged to be caused by his
driver on the date, day and month and in order to claim
compensation, a false complaint lodged as against his driver. The
Magadi Police Station filed Charge Sheet in Crime No.118/2014.
e) No doubt, his vehicle is insured with the Respondent
No.1 and the policy was in force on the date of accident bearing
Policy No.1409732340000366, valid from 19.10.2013 to
SCCH-7 22 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
18.10.2014, the Respondent No.2 indemnified to meet the risk,
but, both they are not liable to pay any compensation, because
the accident was caused due to negligence of the deceased
Krishnamurhty himself. Hence, prayed to dismiss the petition.
20. Based on the above said pleadings, I have framed the
following Issues;
ISSUES
In M.V.C.No.2730/2014
1. Whether the Petitioners prove that,
they are the dependents and legal
representatives of deceased SMT.
LAKSHMAMMA?
2. Whether the Petitioners prove that,
the accident occurred due to rash
and negligent driving of the Bus
Bearing Reg.No.KA-11-7303 by its
driver and Smt.Lakshmamma died
due to the injuries sustained in the
accident?
3. Whether the Petitioners are entitled
for compensation? If so, how much
and from whom?
4. What Order?
In M.V.C.No.2731/2014
1. Whether the Petitioner proves that,
the accident occurred due to rash
and negligent driving of the Bus
SCCH-7 23 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Bearing Reg.No.KA-11-7303 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?
In M.V.C.No.2732/2014
1. Whether the Petitioner proves that,
the accident occurred due to rash
and negligent driving of the Bus
Bearing Reg.No.KA-11-7303 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?
21. In order to prove their respective cases, the Petitioners
in M.V.C.No.2730/2014 have examined the Petitioner No.1 as
P.W.1 by filing an affidavit as his examination-in-chief and have
placed reliance upon Ex.P.1 to Ex.P.7 and Ex.P.16 and the
Petitioner in M.V.C.No.2731/2014 himself has been examined as
P.W.2 and has also examined one witness as P.W.4 by filing the
affidavits as their examination-in-chief and has placed reliance
upon Ex.P.8 to Ex.P.11, Ex.P.18, Ex.P.19 and Ex.P.20 and the
Petitioner in M.V.C.No.2732/2014 himself has been examined as
SCCH-7 24 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
P.W.3 and has also examined one witness as P.W.5 by filing the
affidavits as their examination-in-chief and has placed reliance
upon Ex.P.12 to Ex.P.15, Ex.P.17, Ex.P.21 and Ex.P.22. On the
other hand, the Respondents No.1 and 2 have not adduced any
evidence on their behalf.
22. Heard the arguments.
23. My answers to the above said Issues are as follows;
M.V.C.No.2730/2014
Issue No.1 : Partly in the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are
entitled for compensation
of Rupees 1,75,000/- with
interest at the rate of 9%
p.a. from the date of the
petition till the date of
payment, from the
Respondent No.1.
Issue No.4 : As per the final Order,
M.V.C.No.2731/2014
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
SCCH-7 25 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
The Petitioner is
entitled for compensation
of Rupees 3,11,465/- with
interest at the rate of 9%
p.a. (excluding future
medical expenses of
Rupees 20,000/-) from
the date of the petition till
the date of payment, from
the Respondent No.1.
Issue No.3 : As per the final Order,
M.V.C.No.2732/2014
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 2,46,578/- with
interest at the rate of 9%
p.a. (excluding future
medical expenses of
Rupees 20,000/-) from
the date of the petition till
the date of payment, from
the Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
24. ISSUE NO.1 IN M.V.C.NO.2730/2014 :- The P.W.1,
who is the Petitioner No.1 in M.V.C.No.2730/2014, has stated in
SCCH-7 26 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
his examination-in-chief that, he is the husband of the deceased
Lakshmamma and the Petitioner No.2 is his daughter and his wife
deceased Lakshmamma was met with road traffic accident on
04.05.2014 at about 5.30 p.m., when she was going in a Private
Bus bearing Registration No.KA-11-7303 as a passenger and due
to the said accident, she was seriously injured all over the body
and succumbed to the injuries. He has further stated in his cross-
examination that, he has 3 children, i.e., one son and two
daughters and one daughter is married and the Petitioner No.2 is
unmarried and in the year 1983, he married the deceased. The
Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.4
Postmortem Report, Ex.P.5 Inquest and Ex.P.7 Ration Card. On
perusal of the contents of the said material documents as well as
oral version of P.W.1, it clearly goes to show that, the Petitioner
No.1 is a husband and the Petitioner No.2 is a major unmarried
daughter of deceased Lakshmamma W/o. Jayadevachar, who died
due to the accidental injuries, which sustained in the road traffic
accident, which was taken place on 04.05.2014 at about 5.30 p.m.
It is also clear from the said material evidence that, during the
course of treatment, the said deceased succumbed due to the
accidental injuries. From this, it is made crystal clear that, the
Petitioner No.1 being the husband and the Petitioner No.2 being a
major unmarried daughter are the legal representatives of the said
deceased Smt.Lakshmamma W/o. Jayadevachar. But, based on
the same, it cannot be said that, both the Petitioners were
dependents upon the said deceased at the time of accident, as, it
is well settled principal of law that, the husband cannot be
SCCH-7 27 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
considered as a dependent upon the deceased wife and the
Petitioner No.1 as a father, has to look after the Petitioner No.2,
who is his major unmarried daughter. Therefore, even though the
P.W.1 in his cross-examination has clearly stated that, the
Petitioner No.2 is not doing any work and he is not doing any
work, they cannot be considered as the dependents upon the
deceased Smt. Lakshmamma W/o. Jayadevachar. Accordingly, I
answered Issue No.1 in M.V.C.No.2730/2014 partly in the
Affirmative
25. ISSUE NO.2 IN M.V.C.NO.2730/2014, ISSUE NO.1
IN M.V.C.No.2731/2014 and M.V.C.NO.2732/2014 : - The
P.W.1, who is the Petitioner No.1 in M.V.C.No.2730/2014 has
stated in his examination-in-chief that, his deceased wife met with
road traffic accident on 04.05.2014 at about 5.30 p.m., she was
going in a Private Bus bearing Registration No.KA-11-7303 as a
passenger and while Bus was going near Vengalappanahalli and
Maralagondala Road Bridge, Magadi - Bangalore Road, at that
time, the driver of the Bus driving it in a high speed and rash and
negligent manner without observing traffic rules and regulations
and lost control over the Bus, due to that, the Bus was turtle to
the left side road and due to that accident, his deceased wife was
serious injured all over the body. He has further stated that, the
Magadi Police was informed him about the accident and
immediately, he went to the General Hospital, Magadi, wherein,
his deceased wife was admitted as an inpatient and inspite of best
treatment given by the duty Doctors, his deceased wife was
succumbed to the injuries. He has further stated that, the cause
SCCH-7 28 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
of the accident is due to the rash and negligent driving by the
driver of the Bus bearing Registration No.KA-11-7303 and in this
regard, the case has been registered at Magadi Police Station in
Crime No.118/14 under Section 279 and 304(A).
26. The P.W.2, who is the Petitioner in
M.V.C.No.2731/2014 has stated in his examination-in-chief that,
he was met with road traffic accident on 04.05.2014 at about 5.30
p.m., he was going in a Private Bus bearing Registration No.KA-
11-7303 as a passenger and while Bus was going near
Vengalappanahalli and Maralagondala Road Bridge, Magadi -
Bangalore Road, at the time, the driver of the Bus driven in a high
speed and rash and negligent manner without observing traffic
rules and regulations and lost control over the Bus, due to that,
the Bus was turtle to the left side road. He has further stated that,
due to that accident, he was sustained injuries on leg, right ankle,
shoulder and other abrasion all over the body and injured all over
the body and immediately, he was admitted to General Hospital,
Magadi for first-aid and again, he was admitted to KIMS Hospital,
Bangalore, for better treatment, wherein, he was admitted as an
inpatient. He has further stated that, it was diagnosed that, he
has sustained injuries such as, fracture of calcaneam base with 2
crotical screws fixation and other abrasions and other injuries all
over the body. He has further stated that, the cause of the
accident is due to the rash and negligent driving by the driver of
the Bus bearing Registration No.KA-11-7303 and in this regard,
the case has been registered at Magadi Police Station in Crime
No.118/14 under Section 279 and 304(A).
SCCH-7 29 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
27. The P.W.3, who is the Petitioner in
M.V.C.No.2732/2014 has also stated the same evidence of P.W.2
in his examination-in-chief and has further stated that, due to
that accident, he was sustained injuries on leg, ankle and other
abrasion all over the body and injured all over the body and
immediately, he was admitted to Ashraya Hospital, wherein,
admitted as inpatient for one day and again he was admitted to
M.S.Ramaiah Hospital, Bangalore, for better treatment, wherein,
he was admitted as an inpatient. He has further stated that, it was
diagnosed that, he has sustained injuries, such as, comminuted
fracture of neck of femur left and other abrasion and other
injuries all over the body.
28. No doubt, the P.W.1 in his cross-examination has
clearly stated that, he has not seen the accident. Further, the
Petitioners have not produced the spot hand sketch to know the
exact situation of the place of accident on the accidental spot.
Further, the Petitioners have not examined the eye witness of the
said accident in question in the present petitions.
29. But, the non-examination of eye witness of the
accident in question in the present petition by the Petitioners and
non-production of the spot hand sketch by the Petitioners in the
present petitions, no way affect to consider the case made out by
all the Petitioners in the present petitions as well as their
evidence, which has been stated by them in their examination-in-
chief, as, the Petitioners in M.V.C.No.2731/2014 and
M.V.C.No.2732/2014 are the eye witnesses of the accident in
SCCH-7 30 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
question and to corroborate their respective case, the Petitioners
in M.V.C.No.2730/2014 have produced Ex.P.1 FIR, Ex.P.2
Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 Postmortem Report,
Ex.P.5 Inquest, Ex.P.6 MVI Report and Ex.P.16 Charge Sheet and
the Petitioner in M.V.C.No.2731/2014 has produced Ex.P.8
Discharge Summary, Ex.P.11 X-ray Film and Ex.P.18 Wound
Certificate and the Petitioner in M.V.C.No.2732/2014 has
produced Ex.P.12 Discharge Summary 2 in numbers, Ex.P.15 X-
ray Films 4 in numbers and Ex.P.17 Wound Certificate, which
clearly disclosed that, the entire negligence is on the part of the
driver of the offending Private Bus bearing Registration No.KA-11-
7303 in the commission of the said road traffic accident and there
was no negligence on the part of the deceased Smt.Lakshmamma
and the Petitioners in M.V.C.No.2731/2014 and
M.V.C.No.2732/2014 and due the accidental injuries itself, Smt.
Lakshmamma W/o. Jayadevachar succumbed during the course
of treatment in the Hospital and the Petitioner in
M.V.C.No.2731/2014 had sustained one simple injury and one
grievous injury and the Petitioner in M.V.C.No.2732/2014 had
sustained one grievous injury and one simple injury and initially,
the Petitioner in M.V.C.No.2731/2014 had taken treatment to the
accidental injuries at General Hospital, Magadi by admitting as an
inpatient from 06.05.2014 to 23.05.2014, i.e., for 18 days and
thereafter, again took treatment to the accidental injuries at KIMS
Hospital and by admitting as an inpatient from 06.05.2014 to
23.05.2014, i.e., for 18 days and the Petitioner in
M.V.C.No.2732/2014 had also initially taken treatment at General
SCCH-7 31 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Hospital, Magadi and thereafter, by admitting as an inpatient from
04.05.2014 to 05.05.2014, i.e., for 2 days at Ashraya Medinova
Pvt. Ltd., and thereafter, from 13.05.2014 to 18.05.2014, i.e., for 6
days at M.S.Ramaiah Hospital and again from 13.05.2014 to
01.06.2014, i.e., totally for 20 days, he took treatment to the said
accidental injuries, which is clear from the following discussion.
Furthermore, the P.W.1 to P.W.3 have clearly denied the
suggestions put to them by the Respondent No.1 during the
course of cross-examination that, due to the negligence on the
part of the driver of the offending Bus bearing Registration No.KA-
11-7303, the alleged accident was taken place, but, it is falsely
implicated in the alleged accident and only to claim compensation,
they have filed these petitions and given false evidence. From this,
it appears that, though the P.W.1 to P.W.3 have been cross-
examined by the Respondent No.1, nothing has been elicited from
their mouth to consider its defence. Further, the Respondents
No.1 and 2 though filed the written statement to contest the case
of the Petitioners, they have not adduced any evidence on their
behalf to consider their specific defence.
30. The contents of Ex.P.1 FIR and Ex.P.2 Complaint
clearly disclosed that, the eye witness of the accident in question
had lodged Ex.P.2 Complaint before the Magadi Police as against
the driver of the said offending Bus bearing Registration No.KA-
11-7303 by alleging that, on 04.05.2014 at 5.30 p.m., when he
was walking by the side of the bridge, which was situated in
between Vengalappanahalli and Maralagondala Village, at that
time, Private Bus bearing Registration No.KA-11-7303 came from
SCCH-7 32 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Magadi to Bangalore by its driver with very high speed rash and
negligent manner and it was turtle on the left side of the said road
and due to the said impact, the passengers, namely, Manjunatha
Naika Vengalappanahalli, died on the accidental spot itself and
about 10 - 15 passengers had sustained simple injuries and they
were shifted to Magadi Government Hospital and out of them,
Lakshmamma, Bangalore, died during the course of treatment in
the Hospital and the said accident was taken place due to very
high speed, rash and negligent manner of driving of the offending
Private Bus bearing Registration No.KA-11-7303 by its driver itself
and as such, he prayed to take necessary legal action as against
the driver of the Bus and the said Police have registered a criminal
case as against the driver of the said offending Bus for the
offences punishable under Section 304(A), 279 and 337 of IPC
under Crime No.118/2014. 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 Ex.P.2 Complaint by the eye witness in respect of the said
road traffic accident.
31. The contents of Ex.P.3 Spot Panchanama and Ex.P.6
MVI Report clearly disclosed that, the offending Private Bus
bearing Registration No.KA-11-7303 as well as its driver are very
much involved in the said road traffic accident and due to very
high speed rash and negligent manner of driving of the said
offending Private Bus by its driver itself, the said road traffic
accident was taken place, which was turtle and it was damaged
and the passengers had sustained injuries and out of them one
died on the accidental spot itself and Smt. Lakshmamma, who
SCCH-7 33 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
was a wife and mother of the Petitioner No.2 in
M.V.C.No.2730/2014 died during the course of treatment in the
Hospital. The damages caused to the said offending Private Bus
are clearly mentioned in Ex.P.6 MVI Report, which clearly
disclosed about the terrific impact of the said road traffic accident.
It is also clearly mentioned in Ex.P.6 MVI Report that, the said
accident was not occurred due to any mechanical defects of the
said vehicle.
32. The contents of Ex.P.4 Postmortem Report and Ex.P.5
Inquest further clearly disclosed that, due to the accidental
injuries itself, Smt. Lakshmamma W/o. Jayadevachar died during
the course of treatment. It is also clearly mentioned in Ex.P.4
Postmortem Report that, the death is due to hemorrhage and
shock as a result of crush injury/major long bone fractures. From
this material evidence, it is made crystal clear that, due to crush
injuries and fractures all over the body, Smt. Lakshmamma W/o.
Jayadevachar died during the course of treatment.
33. The contents of Ex.P.18 Wound Certificate clearly
disclosed that, the Petitioner in M.V.C.No.2731/2014 brought to
General Hospital, Magadi with history of road traffic accident,
when he was traveling in Bhavani Bus bearing Registration
No.KA-11-7303 on 04.05.2014 at 5.30 p.m., at Maralagondala
Village and on examination, it is found that, he had sustained
contusion 10 x 6 cms over right anterior aspect and swelling
deformity of right ankle joint, i.e., one simple injury and one
grievous injury and he had also taken treatment at KIMS Hospital
SCCH-7 34 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
by admitting as an inpatient from 06.05.2014 to 23.05.2014, i.e.,
for 18 days. The contents of Ex.P.8 Discharge Summary and
Ex.P.11 X-ray Films further clearly disclosed that, by admitting as
an inpatient from 06.05.2014 to 23.05.2014, i.e., for 18 days, the
Petitioner in M.V.C.No.2731/2014 had taken treatment to the said
accidental injuries at KIMS Hospital and Research Centre. It is
also clearly mentioned in Ex.P.8 Discharge Summary that, with
alleged history of road traffic accident, the said Petitioner was
admitted in the said Hospital to take treatment to the said
accidental injuries. From this medical evidence, it is made crystal
clear that, in the said road traffic accident, the Petitioner in
M.V.C.No.2731/2014 had sustained one simple injury and one
grievous injury and by admitting as an inpatient from 06.05.2014
to 23.05.2014, i.e., for 18 days, he took treatment to the said
accidental injuries at KIMS Hospital and Research Centre.
34. The contents of Ex.P.17 Wound Certificate clearly
disclosed that, the Petitioner in M.V.C.No.2732/2014 had taken
initial treatment at General Hospital Magadi to the accidental
injuries and he was brought with history of road traffic accident,
when he was traveling in Bhavani Bus bearing Registration
No.KA-11-7303 upsided near Maralagondalahalli Village at 5.30
p.m., on 04.05.2014 and on examination, it is found that, he had
sustained the injuries, i.e., pain, tenderness, loss of mobility over
spine, grazed abrasion over left temporal region 2 x 3 cms, i.e.,
one grievous injury and one simple injury and by admitting as an
inpatient from 13.05.2014 to 01.06.2014, i.e., for 20 days, he took
treatment to the said accidental injuries. The contents of Ex.P.12
SCCH-7 35 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Discharge Summary and Ex.P.15 X-ray Films further clearly
disclosed that, by admitting as an inpatient at Ashraya Medinova
Pvt. Ltd., the Petitioner in M.V.C.No.2732/2014 had taken
treatment to the said accidental injuries from 04.05.2014 to
05.05.2014, i.e., for 2 days and from 13.05.2014 to 18.05.2014,
i.e., for 6 days, he also took treatment to the said accidental
injuries at M.S.Ramaiah Hospital and totally from 04.05.2014 to
01.06.2014, i.e., for 20 days, he took treatment to the said
accidental injuries. From the said medical evidence, it is made
crystal clear that, in the said road traffic accident, the Petitioner in
M.V.C.No.2732/2014 had sustained one grievous injury and one
simple injury and totally by admitting as an inpatient for 20 days,
he took treatment to the said accidental injuries.
35. The contents of Ex.P.16 Charge Sheet further clearly
disclosed that, since during the course of investigation, it is found
that, due to very high speed, rash and negligent manner of driving
of offending Private Bus bearing Registration No.KA-11-7303 by its
driver itself, the said road traffic accident was taken place on
04.05.2014 at 5.30 p.m., at Chikkanarasaiah land, Maralagondala
Village, in between Venkappanahalli and Maralagondala Village,
on Magadi to Bangalore Road and due to which, the Bus turtle by
the side of this road and due to the said impact, the passenger
Manjunatha Naika died on the accidental spot and injured
Smt.Lakshmamma W/o. Jayadevachar died during the course of
treatment at Magadi Government Hospital and the other
passengers had sustained simple injuries and grievous injuries
and as such, after thorough investigation, the Investigating Officer
SCCH-7 36 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
has filed a charge sheet as against the driver of the offending
Private Bus bearing Registration No.KA-11-7303 for the offences
punishable under Section 279, 337, 338 and 304(A) of IPC. From
this, it is made crystal clear that, the entire negligence is on the
part of the driver of the offending Private Bus bearing Registration
No.KA-11-7303 and due to which, Smt. Lakshmamma W/o.
Jayadevachar died during the course of treatment at Magadi
Government Hospital and the Petitioners in M.V.C.No.2731/2014
and M.V.C.No.2732/2014 had sustained one simple injury and
one grievous injury, respectively.
36. From the above said material evidence, both oral and
documentary, it is clearly proved that, due to very high speed,
rash and negligent manner of driving of the offending Private Bus
bearing Registration No.KA-11-7303 by its driver itself, the said
road traffic accident was taken place, wherein, Smt.Lakshmamma
W/o. Jayadevachar succumbed to the injuries during the course
of treatment in the Hospital and the Petitioners in
M.V.C.No.2731/2014 and M.V.C.No.2732/2014 have sustained
one simple injury and one grievous injury, respectively and the
said offending Private Bus bearing Registration No.KA-11-7303 as
well as its driver are very much involved in the said road traffic
accident. Accordingly, I answered Issue No.2 in
M.V.C.No.2730/2014 and Issue No.1 in M.V.C.No.2731/2014
and M.V.C.No.2732/2014 in the Affirmative.
37. ISSUE NO.3 IN M.V.C.NO.2730/2014 AND ISSUE
NO.2 IN M.V.C.NO.2731/2014 AND M.V.C.NO.2732/2014 :-
SCCH-7 37 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
38. ISSUE NO.3 IN M.V.C.NO.2730/2014 :- The
Petitioners have not produced any authenticated documents to
consider the actual age of the deceased Smt.Lakshmamma at the
time of accident. But, the above said Police and medical
documents clearly disclosed that, at the time of accident, the
deceased was aged 45 years old. Hence, in the absence of the
material evidence, based on the Police and medical documents,
the age of the deceased Smt.Lakshmamma is considered as 45
years at the time of accident.
39. The P.W.1 has stated that, before the accident, his wife
was working at factory as a Trimmer at Sri.Venktateshwara
Industries, Kamakshipalya, Bangalore, on monthly salary of
Rupees 12,000/- p.m., and his deceased wife hale and healthy
prior to the accident. To consider the avocation and income of the
deceased at the time of accident, the Petitioners have not
produced any authenticated documents issued by her employer.
The Petitioners have not disclosed the educational qualification of
the deceased. Further, the Petitioners have not produced the Bank
Statement or salary slips to consider her actual income at the time
of accident. In this regard, the P.W.1 in his cross-examination has
clearly stated that, he has not produced any documents to show
that, at the time of accident, his deceased wife was earning
Rupees 12,000/- per month. Therefore, the said evidence of P.W.1
in respect of the avocation and income of the deceased
Smt.Lakshmamma cannot be believed and accept. However, at the
time of accident, the deceased was 45 years old and the Petitioner
SCCH-7 38 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
No.1 is her husband and the Petitioner is No.2 is her unmarried
daughter. Further, the P.W.1 in his cross-examination has clearly
stated that, his deceased wife was a housewife. By considering the
same, this Tribunal feels that, it is just, proper and necessary to
consider the notional income of the deceased is of Rupees 8,000/-
p.m., at the time of accident, as, even a Coolie can get minimum
income of Rupees 8,000/- p.m., now a days. Hence, the notional
income of the deceased is considered as Rupees 8,000/- p.m., at
the time of accident.
40. The P.W.1 has stated that, his deceased wife was
maintaining the entire family and she was the sole bread earning
member in the family and due to the untimely death of the
deceased, they are suffering from financial difficulties and out life
has become miserable.
41. While answering Issue No.1 in M.V.C.No.2730/2014,
this Tribunal has already observed and come to the conclusion
that, the Petitioner No.1 being a husband and the Petitioner No.2
being a major unmarried daughter are the legal representatives of
the said deceased Smt. Lakshmamma, but, they are not the
dependents upon the said deceased at the time of accident.
Further, while answering Issue No.2 in M.V.C.No.2730/2014 and
Issue No.1 in M.V.C.No.2031/2014 and M.V.C.No.2032/2014,
this Tribunal has come to the conclusion that, due to the
accidental injuries itself, the said Smt.Lakshmamma succumbed
during the course of treatment in the Hospital. When the
SCCH-7 39 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Petitioners are not depending upon the said deceased, they are not
entitled for compensation under the head of loss of dependency.
Therefore, the Petitioners are not entitled for compensation under
the head of loss of dependency.
42. However, the Petitioner No.1 being husband and the
Petitioner No.2 being a major unmarried daughter are the legal
representatives of the said deceased, they are entitled for
compensation under the following heads.
43. As per the principles laid down in the decision reported
in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and
Others), loss of consortium to the Petitioner No.1, who is a
husband of the deceased, should be Rupees 1,00,000/-, loss of
love and affection has to be compensated by awarding Rupees
25,000/- and funeral expenses should be Rupees 25,000/-. As
this Tribunal has already observed that, the Petitioner No.1 is a
husband and the Petitioner No.2 is a major daughter of the
deceased. Hence, the Petitioner No.1 is entitled for a sum of
Rupees 1,00,000/- towards Loss of consortium and all the
Petitioners are entitled for a sum of Rupees 25,000/- towards loss
of love and affection and Rupees 25,000/- towards funeral
expenses.
44. The P.W.1 has stated that, after postmortem, the dead
body was handed over to him and he has performed the funeral
and obsequies by spending Rupees 50,000/- and also he spend
SCCH-7 40 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Rupees 20,000/- towards transportation of the dead body. In this
regard, the Petitioners have not produced any scrap of paper.
45. In the absence of the material documents, it is just,
proper and necessary to award a sum of Rupees 5,000/- towards
transportation expenses of the dead body of deceased and Rupees
20,000/- towards loss of estate. Hence, the Petitioners are
entitled for Rupees 5,000/- towards transportation expenses of
the dead body of the deceased and Rupees 20,000/- towards loss
of estate.
46. In this way, the Petitioners are entitled for the following
amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Loss of consortium Rs. 1,00,000-00
2. Funeral Expenses Rs. 25,000-00
3. Loss of Love and affection Rs. 25,000-00
4. Loss of Estate Rs. 20,000-00
5. Transportation of dead body Rs. 5,000-00
TOTAL Rs. 1,75,000-00
47. In all, the Petitioners are entitled for total
compensation of Rupees 1,75,000/- along with interest at the rate
of 9% per annum on the above said sum from the date of petition
till payment.
SCCH-7 41 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
48. ISSUE NO.2 IN M.V.C.NO.2731/2014 :- The
Petitioner has not produced any authenticated documents to
consider his actual age at the time of accident. Further, there is
discrepancy in mentioning the actual age of the Petitioner in the
above said Police and medical documents, i.e., 43 years is shown
in Ex.P.8 Discharge Summary and 42 years shown in Ex.P.18
Wound Certificate and 45 years is shown in Ex.P.16 Charge Sheet.
However, in Ex.P.16 Charge Sheet, the age of the Petitioner is
shown as 45 years and the same is considered as his actual age at
the time of accident. Hence, the age of the Petitioner is considered
as 45 years at the time of accident.
49. The P.W.2 has stated that, before the accident, he was
working as a Tailor and was earning a sum of Rupees 12,000/-
per month. To consider the same, the Petitioner has not produced
any authenticated documents. He has further stated in his cross-
examination that, he is doing tailoring work at Kamakshipalya
since 25 years at his house and he is receiving the orders for
tailoring work from the other tailors, who are running tailoring
shop and he has only one sewing machine. He has further stated
that, he has not produced any documents relating to his tailoring
profession. He has further stated that, now he is getting income
less than Rupees 12,000/-. From the said evidence, it is clear
that, the Petitioner is doing tailoring work. But, the evidence of
P.W.2 that, he was earning a sum of Rupees 12,000/- p.m., from
the tailoring work cannot be believed and accept as it is not
proved by the Petitioner by producing acceptable material
evidence. However, at the time of accident, the Petitioner was 45
SCCH-7 42 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
years old, which disclosed his family status with wife and
children. By considering the same, this Tribunal feels that, it is
just, proper and necessary to consider the notional income of the
Petitioner is of Rupees 8,000/- p.m., at the time of accident.
Hence, the notional income of the Petitioner is considered as
Rupees 8,000/- p.m., at the time of accident.
50. The P.W.2 has stated that, he is continually under
treatment from the date of accident till today and after discharge
from the Hospital, he visited the Doctors for dressing wounds and
follow-up treatment once in a week for the period of 3 months and
latter, once in a month for period of 6 months. Based on Ex.P.18
Wound Certificate and Ex.P.8 Discharge Summary, this Tribunal
has already observed and come to the conclusion that, in the said
road traffic accident, the Petitioner had sustained the injuries, i.e.,
contusion 10 x 6 cms over right anterior aspect and swelling
deformity of right ankle joint, i.e., one simple injury and one
grievous injury and by admitting as an inpatient from 06.05.2014
to 23.05.2014, i.e., for 18 days, he took treatment to the said
accidental injuries at KIMS Hospital and Research Centre. It is
also clearly mentioned in Ex.P.8 Discharge Summary that, it is
diagnosed B/L calcaneum fracture and X-ray shows fracture B/L
calcaneum and during the course of treatment CRIF with Gissane
spica right calcaneum and below knee POP cast for left caleaneum
done on 15.05.2014. From this, it is made crystal clear that,
during the course of treatment, implants are inserted to the
Petitioner to his fracture site. It is also clearly mentioned in Ex.P.8
Discharge Summary about the advise to the Petitioner while
SCCH-7 43 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
discharge, i.e., non-weight bearing, etc., The P.W.2 has also
produced Ex.P.9 OPD Slips 6 in numbers, which clearly disclosed
that, even after discharge from the Hospital, the Petitioner took
treatment to the said accidental injuries, i.e., follow-up treatment
as per the advise of the treated Doctors. Therefore, the nature of
injuries, line of treatment and follow-up treatment as stated by the
P.W.2 can very well be believed and accept.
51. The P.W.2 has stated that, he is getting frequent pain
in his right leg and not able to do manual work and he is not able
to life and after the accident, he was not able to do work and
suffering from heavy loss of income.
52. The P.W.4 has stated in his examination-in-chief that,
recently, he examined the Petitioner at Victoria Hospital on
17.03.2016 exclusively for disability assessment and on clinical
examination, he found the disabilities, i.e., difficulty to stand and
bear weight on right foot or on left foot or on both feet, to climb up
and down the stair case, to walk on the slope, to walk on the
plane surface and to squat on the floor. By considering the range
of movements of ankle joint, loss of power of muscles acting
around right ankle region and left ankle joint and based on the
Findings and Guidelines and Gazette Notification, the P.W.4 has
opined that, the Petitioner suffers the permanent residual physical
disability of about 16% of whole body. He has further stated that,
the radiological examination revealed fracture of right calcaneum
shows union with implant in situ with narrowing and obliteration
of subtalar joint and osteo arthritis changes and fracture of left
SCCH-7 44 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
calcaneum shows union. The P.W.4 has produced Ex.P.19 OPD
Book and Ex.P.20 Recent X-ray Film with Repot.
53. But, based on the oral version of P.W.2 and P.W.4
coupled with the contents of the above said medical documents as
well as the observations made by this Tribunal based on the said
medical documents, it cannot be believed and accept that, due to
the said accidental injuries, the Petitioner is suffering from
permanent residual physical disability of 16% to the whole body,
as, the P.W.4 in his examination-in-chief itself has clearly stated
that, fracture of right calcaneum shows union with implant in situ
with narrowing and obliteration of subtalar joint and osteo
arthritis changes and fracture of left calcaneum shows union. He
has further stated in his cross-examination that left calcaneum
fracture is united and left calcaneum fracture is united with some
complications and in left calceaeum, joint space is narrowed and
osteo arthritis changes are seen and osteo arthritis no way
connected to the said injuries. Further, the P.W.2 is not a treated
Doctor and he has not issued disability certificate. Further, the
Petitioner has not examined the treated Doctor and also not
produced the disability certificate issued by the treated Doctor or
any competent Doctor. Further, the P.W.4 in his cross-
examination has clearly stated that, as the Petitioner is a Tailor by
profession, by using motor, he can do the said profession and the
restriction of movements in respect of ankle joint is a mild and the
operation was conducted to the right knee and left knee is treated
conservatively. Further, the P.W.4 has not specifically assessed
the permanent physical and functional disability of the Petitioner,
SCCH-7 45 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
which is arising out of the said accidental injuries, by considering
his avocation as Tailor. Further, the P.W.2 has stated in his cross-
examination that, since, 3-4 months, he is doing Tailoring work.
From this, it appears that, even after recovery from the said
accidental injuries, the Petitioner is doing Tailoring work and
getting income. Hence, the permanent residual physical disability
of about 16% to the whole body as stated by the P.W.4 cannot be
believed and accept.
54. However, in the said road traffic accident, the
Petitioner had sustained one grievous injury and one simple injury
and by admitting as an inpatient totally for 18 days, he took
treatment to the said accidental injuries and still the Petitioner is
having implant in situ and the Petitioner is a Tailor by profession
and he was 45 years old 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 of 12% to the whole body, which is believable
and acceptable one. Hence, the Petitioner is entitled for
compensation under the following heads.
55. As this Tribunal has already come to the conclusion
that, the age of the Petitioner was 45 years at the time of accident.
The multiplier corresponding to the said age as per Sarala
Varma's case is 14.
56. As the Petitioner is suffering from permanent physical
and functional disability of 12% to the whole body. The notional
SCCH-7 46 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
income of the Petitioner is already considered as Rupees 8,000/-
per month. Therefore, the loss arising out of the said 12%
disability for monthly income of Rupees 8,000/- by applying
multiplier 14 comes to Rupees 1,61,280/-, i.e., (Rs.8,000/- x 12 x
14 x 12%).
57. As per Ex.P.18 Wound Certificate and evidence of
P.W.2 and P.W.4, the Petitioner had sustained one grievous injury
and one simple injury. The Petitioner was in the Hospital as an
inpatient from 06.05.2014 to 23.05.2014, i.e., for 18 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 30,000/- towards pain and suffering.
58. As it is already observed that, the age of the Petitioner
was 45 years. He has to lead remaining his entire life with 12%
permanent physical and functional disability, which comes in the
way of enjoyment of life. Therefore, it is just, proper and necessary
to award a sum of Rupees 20,000/- towards loss of amenities of
life to the Petitioner.
59. The Petitioner had sustained one grievous injury and
one simple injury and he was in the Hospital as an inpatient for
18 days and he could not do any work at least for 3 months and
thereby, he deprived the income. Therefore, at the rate of Rupees
8,000/- per month, a sum of Rupees 24,000/- (Rupees 8,000/- X
SCCH-7 47 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
3 months) is awarded towards loss of income during the laid up
period.
60. The P.W.2 has stated that, he visited the Doctors by
engaging the Auto and the fare will be Rupees 300/- per visit and
as on today, he has spent Rupees 50,000/- towards medical,
conveyance and nourishment expenses. In this regard, the
Petitioner has produced Ex.P.10 Medical Bills 63 in numbers,
which is amounting of Rupees 45,184-85. The P.W.2 in his cross-
examination has clearly stated that, he has not reimbursed the
medical expenses. The Petitioner has taken treatment at KIMS
Hospital and Research Centre, wherein, he was taken treatment
as an inpatient from 06.05.2014 to 23.05.2014, i.e., for 18 days.
Considering the nature of the injuries and line of treatment given
to the Petitioner and length of treatment, the possibility of
spending the said amount for the medicines cannot be doubted.
Therefore, it is necessary to award the said actual medical
expenses of Rupees 45,184-85, which is rounded off Rupees
45,185/- to the Petitioner.
61. The P.W.2 has not stated anything about the future
medical assistance and its expenses. The P.W.4 has stated that,
the Petitioner is advised to undergo another operation for removal
of implants from right Calcaneum. It is clearly mentioned in
Ex.P.8 Discharge Summary about CRIF with Gissane spica right
calcaneum and below knee, which disclosed about the insertion of
implants in situ. The said implants have to be removed and
therefore, the Petitioner requires the amount for future medical
SCCH-7 48 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
expenses. Neither the Petitioner nor P.W.4 produced the
estimation for removal of implants. However, this Tribunal feels
that, it is just, proper and necessary to award future medical
expenses of Rupees 20,000/- to the Petitioner.
62. As the Petitioner was taken treatment as an inpatient
for 18 days, it is necessary to award a sum of Rupees 3,000/-
towards conveyance charges, Rupees 3,000/- towards attendant
charges and Rupees 5,000/- towards food, nourishment and diet
charges etc.,
63. In this way, the Petitioner is entitled for the following
amount of compensation:-
Sl. No. Compensation heads Compensation amount
Loss of future income
1. arising out of 12% Rs. 1,61,280-00
Disability
2. Pain and sufferings Rs. 30,000-00
3. Loss of amenities of life Rs. 20,000-00
Loss of income during laid
4. Rs. 24,000-00
up period
5. Actual medical expenses Rs. 45,185-00
6. Future medical expenses Rs. 20,000-00
7. Conveyance Rs. 3,000-00
8. Attendant Charges Rs. 3,000-00
Food, Nourishment &
9. Rs. 5,000-00
Diet charges
TOTAL Rs. 3,11,465-00
SCCH-7 49 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
64. In all, the Petitioner is entitled for total compensation
of Rupees 3,11,465/- along with interest at the rate of 9% per
annum (excluding future medical expenses of Rupees 20,000/-)
on the above said sum from the date of petition till payment.
65. ISSUE NO.2 IN M.V.C.NO.2732/2014 :- The
Petitioner has not produced any authenticated documents to
consider his actual age at the time of accident. The above said
medical documents disclosed that, he was 41 years at the time of
accident. Ex.P.16 Charge Sheet disclosed that, he was 45 years
old at the time of accident. From this, it appears that, there is
confliction and discrepancy in considering the age of the Petitioner
at the time of accident. However, as per Ex.P.16 Charge Sheet, the
age of the Petitioner was 45 years at the time of accident, as such,
it is considered that, the actual age of the Petitioner was 45 years
at the time of accident.
66. The P.W.3 has stated that, before the accident, he was
working as a Supervisor and was earning a sum of Rupees
15,000/- per month. Except his oral version, the Petitioner has
not produced any authenticated documents to consider his
avocation and income at the time of accident. Even, the Petitioner
has not produced any authenticated documents issued by his
employer to consider his avocation and income at the time of
accident. Though, the P.W.3 in his cross-examination has clearly
stated that, since 26 years, he is working as a Supervisor, he has
not produced any documents issued by his employer to consider
the same. Further, though the P.W.3 has clearly stated in his
SCCH-7 50 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
cross-examination that, he has no hurdle to examine his employer
and by way of cash, he is receiving the salary, he did not care to
examine his employer and to produce the required documents to
consider his avocation and income, in the present petition. Even,
the Petitioner has not disclosed his educational qualification.
Therefore, the said avocation and income as stated by the P.W.3
cannot be believed and accept. However, at the time of accident,
the Petitioner was 45 years old, which clearly disclosed about his
family status with wife and children. Further, now a day's even a
Coolie can get minimum wages of Rupees 8,000/- per month. By
considering the same, this Tribunal feels that, it is just, proper
and necessary to consider the notional income of the Petitioner is
of Rupees 8,000/- p.m., at the time of accident.
67. The P.W.3 has stated that, he is continually under
treatment from the date of accident till today and after discharge
from the Hospital, he visited the Doctors for dressing wounds and
follow-up treatment once in a week for the period of 3 months and
later, once in a month for a period of 6 months. Based on Ex.P.17
Wound Certificate and Ex.P.12 Discharge Summary, this Tribunal
has already observed and come to the conclusion that, in the said
road traffic accident, the Petitioner had sustained the injuries, i.e.,
pain, tenderness, loss of mobility over spine, grazed abrasion over
left temporal region 2 x 3 cms, i.e., one simple injury and one
grievous injury and by admitting as an inpatient from 04.05.2014
to 01.06.2014, i.e., for 20 days, he took treatment to the said
accidental injuries at Ashraya Medinova Pvt. Ltd., and M.S.
Ramaiah Hospital. It is also clearly mentioned in Ex.P.12
SCCH-7 51 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
Discharge Summaries that, it is diagnosed left fracture neck of
femur gardens type - II and during the course of treatment CRIF
with 3 - CC screws done on 15.05.2014. From this, it is made
crystal clear that, during the course of treatment, implants are
inserted to the Petitioner to his fracture site. It is also clearly
mentioned in Ex.P.12 Discharge Summary about the advise of
follow-up treatment at the time of discharge to the Petitioner to
review in Ortho-II OPD after week. Therefore, the nature of
injuries, line of treatment and follow-up treatment as stated by the
P.W.3 can very well be believed and accept.
68. The P.W.3 has stated that, he is getting frequent pain
in his left leg and not able to do manual work and it is heavy loss
of income.
69. The P.W.5 has stated in his examination-in-chief that,
recently, he examined the Petitioner at Victoria Hospital on
17.03.2016 exclusively for disability assessment and on clinical
examination, he found the disabilities, i.e., difficulty to sit cross
legged, to squat on the floor, to climb up and down the stair case,
to walk on the slope and to stand on the left leg and bear weight
on it. By considering the range of movements of left hip joint, loss
of power muscles acting around left hip joint and based on the
Findings and Guidelines and Gazette Notification, the P.W.5 has
opined that, the Petitioner suffers the permanent residual physical
disability of about 14.7% of whole body. He has further stated
that, the radiological examination revealed that, fracture neck of
left femur shows union with 3 cannulated cancellous screws in
SCCH-7 52 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
situ. The P.W.5 has produced Ex.P.21 OPD Book and Ex.P.22
Recent X-ray Film with Repot.
70. But, based on the oral version of P.W.3 and P.W.5
coupled with the contents of the above said medical documents as
well as the observation made by this Tribunal based on the said
medical documents, it cannot be believed and accept that, due to
the said accidental injuries, the Petitioner is suffering from
permanent residual physical disability of 14.7% to the whole body,
as, the P.W.5 is not a treated Doctor and the Petitioner has not
examined the treated Doctor and neither the P.W.5 nor the
Petitioner produced the disability certificate. Even the Petitioner
has not produced the disability certificate issued by the treated
Doctor or the competent Doctor, who authorized to issue such
certificate. Further, the P.W.5 has clearly stated in his cross-
examination that, the fractures of femur is united with implant in
situ and if there is activity, the pain comes to femur neck fracture.
He has further clearly stated that, he has not arrived any points in
respect of pain in femur neck fracture. He has further stated that,
the Petitioner can do the work by sitting and there is no relation in
between neck and femur fracture. Further the P.W.5 in his
examination-in-chief itself has clearly stated that, the fracture
neck of left femur shows union. Further, the Petitioner is still
having implants in situ to the fracture site. If the said implants
removed, the said extent of permanent residual disability will be
definitely reduced. Further, the P.W.3 in his cross-examination
has clearly stated that, now he is receiving half salary from his
employer. The said evidence of P.W.3 clearly disclosed that, even
SCCH-7 53 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
after the accident, the Petitioner has continued the same work by
getting salary. Further, though the P.W.3 in his cross-examination
has stated that, now he is not regularly attending the said job, to
consider the same, no authenticated documents issued by his
employer are produced. Further, the P.W.5 has not specifically
assessed the permanent physical and functional disability of the
Petitioner, which is arising out of the said accidental injuries, by
considering his avocation. Therefore, the permanent residual
physical disability of about 14.7% to the whole body as stated by
the P.W.5 cannot be believed and accept.
71. However, in the said road traffic accident, the
Petitioner had sustained one grievous injury and one simple injury
and by admitting as an inpatient totally for 20 days, he took
treatment to the said accidental injuries and still the Petitioner is
having implant in situ and the Petitioner is a tailor by profession
and he was 45 years old 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 of 10% to the whole body, which is believable
and acceptable one. Hence, the Petitioner is entitled for
compensation under the following heads.
72. As this Tribunal has already come to the conclusion
that, the permanent physical and functional disability of the
Petitioner is of 10%. This would certainly come in the way of the
future life of the Petitioner and thereby, his income to that extent
would be definitely reduced. Therefore, the Petitioner is entitled for
SCCH-7 54 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
future loss of income arising out of the permanent physical and
functional disability of 10%.
73. As this Tribunal has already come to the conclusion
that, the age of the Petitioner was 45 years at the time of accident.
The multiplier corresponding to the said age as per Sarala
Varma's case is 14.
74. 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 8,000/-
per month. Therefore, the loss arising out of the said 10%
disability for monthly income of Rupees 8,000/- by applying
multiplier 14 comes to Rupees 1,34,400/-, i.e., (Rs.8,000/- x 12 x
14 x 10%).
75. As per Ex.P.17 Wound Certificate and evidence of
P.W.3 and P.W.5, the Petitioner had sustained one grievous injury
and one simple injury. The Petitioner was in the Hospital as an
inpatient from 04.05.2014 to 05.05.2014, i.e., for 2 days at
Ashraya Medinova Pvt. Ltd., and from 31.05.2014 to 18.05.2014,
i.e., for 6 days at M.S.Ramaiah Hospital, i.e., totally from
04.05.2014 to 01.06.2014, i.e., for 20 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
30,000/- towards pain and suffering.
SCCH-7 55 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
76. As it is already observed that, the age of the Petitioner
was 45 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, proper and necessary
to award a sum of Rupees 20,000/- towards loss of amenities of
life to the Petitioner.
77. The Petitioner had sustained one grievous injury and
one simple injury and he was in the Hospital as an inpatient for
20 days and he could not do any work at least for 3 months and
thereby, he deprived the income. Therefore, at the rate of Rupees
8,000/- per month, a sum of Rupees 24,000/- (Rupees 8,000/- X
3 months) is awarded towards loss of income during the laid up
period.
78. The P.W.3 has stated that, he visited the Doctors by
engaging the Auto and the fare will be Rupees 300/- per visit and
as on today, he has spent Rupees 60,000/- towards medical,
conveyance and nourishment expenses. In this regard, the
Petitioner has produced Ex.P.13 Medical Bills 8 in numbers,
which is amounting of Rupees 7,177-60 and Ex.P.14 Medical
Prescriptions 2 in numbers. The Petitioner has taken treatment at
Ashraya Medinova Pvt. Ltd., M.S.Ramaiah Hospital and General
Hospital Magadi from 04.05.2014 to 01.06.2014, i.e., for 20 days
as an inpatient. Considering the nature of the injuries and line of
treatment given to the Petitioner and length of treatment, the
possibility of spending the said amount for the medicines cannot
be doubted. Therefore, it is necessary to award the said actual
SCCH-7 56 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
medical expenses of Rupees 7,177-60, which is rounded off
Rupees 7,178/- to the Petitioner.
79. The P.W.3 has not stated anything about the future
medical assistance and its expenses. The P.W.5 has stated that,
the Petitioner is advised to undergo another operation for removal
of implants from left femur. It is clearly mentioned in Ex.P.12
Discharge Summaries about CRIF with 3 - CC screws on
15.05.2014, which disclosed about the insertion of implants in
situ. The said implants have to be removed and therefore, the
Petitioner requires the amount for future medical expenses.
Neither the Petitioner nor P.W.5 produced the estimation for
removal of implants. However, this Tribunal feels that, it is just,
proper and necessary to award future medical expenses of Rupees
20,000/- to the Petitioner.
80. As the Petitioner was taken treatment as an inpatient
for 20 days, it is necessary to award a sum of Rupees 3,000/-
towards conveyance charges, Rupees 3,000/- towards attendant
charges and Rupees 5,000/- towards food, nourishment and diet
charges etc.,
81. In this way, the Petitioner is entitled for the following
amount of compensation:-
Sl. No. Compensation heads Compensation amount
Loss of future income
1. arising out of 10% Rs. 1,34,400-00
Disability
SCCH-7 57 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
2. Pain and sufferings Rs. 30,000-00
3. Loss of amenities of life Rs. 20,000-00
Loss of income during laid
4. Rs. 24,000-00
up period
5. Actual medical expenses Rs. 7,178-00
6. Future medical expenses Rs. 20,000-00
7. Conveyance Rs. 3,000-00
8. Attendant Charges Rs. 3,000-00
Food, Nourishment &
9. Rs. 5,000-00
Diet charges
TOTAL Rs. 2,46,578-00
82. In all, the Petitioner is entitled for total compensation
of Rupees 2,46,578/- along with interest at the rate of 9% per
annum (excluding future medical expenses of Rupees 20,000/-)
on the above said sum from the date of petition till payment.
83. While answering Issue No.2 in M.V.C.No.2730/2014,
Issue No.1 in M.V.C.No.2731/2014 and M.V.C.No.2732/2014,
this Tribunal has already come to the conclusion that, due to very
high speed, rash and negligent manner of driving of the offending
Private Bus bearing Registration No.KA-11-7303 by its driver
itself, the said road traffic accident was taken place, wherein,
Smt.Lakshmamma W/o. Jayadevachar succumbed to the injuries
during the course of treatment in the Hospital and the Petitioners
in M.V.C.No.2731/2014 and M.V.C.No.2732/2014 have sustained
one simple injury and one grievous injury, respectively and the
said offending Private Bus bearing Registration No.KA-11-7303 as
well as its driver are very much involved in the said road traffic
SCCH-7 58 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
accident. It is clearly mentioned by the respective Petitioners in
the cause title of the petitions that, the Policy
No.1409732340000366 and validity from 19.10.2013 to
18.10.2014. The Respondent No.1 in its written statement has
clearly admitted that, it has issued the policy in respect of the Bus
bearing Registration No.KA-11-7303, but, the original copy of the
policy is in the possession and control of the Respondent No.2.
The Respondent No.2 in his written statement has clearly stated
that, his vehicle is insured with the Respondent No.1 and the
policy was in force on the date of accident bearing Policy
No.1409732340000366, valid from 19.10.2013 to 18.10.2014 and
the Respondent No.2 indemnified to meet the risk. The said period
of insurance policy includes the date of accident. From this, it is
made crystal clear that, at the time of accident, the Respondent
No.1 was an Insurer and the Respondent No.2 was a R.C. Owner
of the offending Bus bearing Registration No.KA-11-7303 and its
Insurance Policy was valid, which covers the date of accident.
There is no allegation leveled as against the driver of the offending
Bus bearing Registration No.KA-11-7303 in Ex.P.16 Charge Sheet
that, at the time of accident, he was not having a valid and
effective driving licence to drive such class of offending Bus. The
violation of the terms and conditions of the admitted Insurance
Policy by the Respondent No.2 is not proved by the Respondent
No.1. Under such circumstances, the Respondent No.1 being the
Insurer and the Respondent No.2 being the R.C. Owner of the
offending Bus bearing Registration No.KA-11-7303, are jointly and
severally liable to pay the above said compensation and interest to
SCCH-7 59 MVC.No.2730/2014
C/w MVC No.2731/2014
and M.V.C.No.2732/2014
the Petitioners in all the cases. Since the Respondent No.1 is an
insurer, it shall indemnify the Respondent No.2. Hence, Issues
No.3 in M.V.C.No.2730/2014 and Issue No.2 in both
M.V.C.No.2731/2014 and M.V.C.No.2732/2014 are answered
accordingly.
84. ISSUE NO.4 IN M.V.C.No.2730/2014 :- For the
aforesaid reasons, I proceed to pass the following;
ORDER
The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioners are entitled for compensation of Rupees 1,75,000/- with interest at the rate of 9% 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.
SCCH-7 60 MVC.No.2730/2014C/w MVC No.2731/2014 and M.V.C.No.2732/2014 The Petitioners No.1 and 2 shall share the compensation and interest amount in the ratio of 75:25.
In the event of deposit of
compensation and interest, entire
shares relating to the Petitioners No.1 and 2 shall be released in their respective names through account payee cheques, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
Original copy of the Judgment shall be kept in M.V.C.No.2730/2014 and the copy of the same shall be kept in M.V.C.No.2731/2014 and M.V.C.No.2732/2014..
Draw award accordingly.
55. ISSUE NO.3 IN M.V.C.NO.2731/2014 :- For the aforesaid reasons, I proceed to pass the following;
SCCH-7 61 MVC.No.2730/2014C/w MVC No.2731/2014 and M.V.C.No.2732/2014 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 3,11,465/- with interest at the rate of 9% p.a. (excluding future medical expenses of Rupees 20,000/-) from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of
compensation and interest, entire
amount shall be released in the name of the Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
SCCH-7 62 MVC.No.2730/2014C/w MVC No.2731/2014 and M.V.C.No.2732/2014 Original copy of the Judgment shall be kept in M.V.C.No.2730/2014 and the copy of the same shall be kept in M.V.C.No.2731/2014 and M.V.C.No.2732/2014.
Draw award accordingly.
55. ISSUE NO.3 IN M.V.C.NO.2732/2014 :- 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 2,46,578/- with interest at the rate of 9% p.a. (excluding future medical expenses of Rupees 20,000/-) from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in SCCH-7 63 MVC.No.2730/2014 C/w MVC No.2731/2014 and M.V.C.No.2732/2014 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 the Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
Original copy of the Judgment shall be kept in M.V.C.No.2730/2014 and the copy of the same shall be kept in M.V.C.No.2731/2014 and M.V.C.No.2732/2014.
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 4th day of August, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
SCCH-7 64 MVC.No.2730/2014C/w MVC No.2731/2014 and M.V.C.No.2732/2014 ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Sri. Jayadevachar P.W.2 : Sri. Narasimha Murthy P.W.3 : Sri. Anjanappa @ Anjaneya P.W.4 : Dr. S. Ramachandra P.W.5 : Dr. S. Ramachandra
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True Copy of FIR
Ex.P.2 : True Copy of Complaint
Ex.P.3 : True Copy of Spot Panchanama
Ex.P.4 : True Copy of Postmortem Report
Ex.P.5 : True Copy of Inquest
Ex.P.6 : True copy of MVI Report
Ex.P.7 : Notarized Xerox copy of Ration Card
Ex.P.8 : Discharge Summary
Ex.P.9 : OPD Slips (6 in nos.)
Ex.P.10 : Medical Bills (63 in Nos.) Ex.P.11 : X-ray Films (7 in Nos.) Ex.P.12 : Discharge Summaries (2 in nos.) Ex.P.13 : Medical Bills (2 in nos.) Ex.P.14 : Medical Prescriptions (2 in nos.) Ex.P.15 : X-ray Films (4 in nos.) Ex.P.16 : True copy of Charge Sheet Ex.P.17 : True copy of Wound Certificate Ex.P.18 : True copy of Wound Certificate Ex.P.19 : OPD Book Ex.P.20 : Recent X-ray Film with Report Ex.P.21 : OPD Book Ex.P.22 : Recent X-ray Film with Report
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-SCCH-7 65 MVC.No.2730/2014
C/w MVC No.2731/2014 and M.V.C.No.2732/2014
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.