Bangalore District Court
Sri Devadas vs The Managing Director on 13 January, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 13th day of January 2015
M.V.C.No.4422/2009
Petitioner Sri Devadas,
S/o Rajendra Das,
Aged 20 years,
Residing at No.66,
Chinnamma Layout,
2nd Main road,
Maruthi Nagara,
Bangalore.
(Sri B.R. Srinivasa, Advocate)
V/s
Respondents 1. The Managing Director,
BMTC K.H. Road,
Shanthinagar,
Bangalore - 560 027.
(RC Owner of BMTC Bus Bearing
registration No.KA-01-F-2784)
(Sri G.S. Jagadeesh, Advocate)
2. The Manager,
The United India Insurance Co. Ltd.,
Chickpet Branch, K.R. Road,
Opposite Vanivilas Hospital,
Lakshmi Complex,
Bangalore.
(Insurer of BMTC Bus Bearing
registration No.KA-01-F-2784)
(Sri G.V. Jagadeesha, Advocate)
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, for 2 (SCCH-8) M.V.C.No.4422/2009 seeking compensation of Rs.10,00,000/- for the injuries sustained by him in a road traffic accident.
2. The brief facts of the claim petition are as under:
The petitioner in his claim petition has alleged that, on 13- 02-2009 at about 2.00 p.m., he was traveling in BMTC bus bearing No.KA-01-F-2784, when the said bus reached the Surabinagar bus stop on Kothnur dinne main road, J.P. Nagar 7th Phase, Bangalore, the driver of the said bus has stopped the bus in order to facilitate the passengers to get down from the bus, the petitioner was in the process of alighting from the bus, at that time the driver of the bus abruptly moved the bus so as to in a high speed, rash and negligent manner. Consequent to that terrific impact, the petitioner who was on foot board in the process of alighting caught hold of the road near the door avoiding falling from the bus, since the bus is in high speed jumped over the road hump, at that time his left foot was crushed between hump and foot board of the said bus. So, he was immediately shifted to T.R. Hospital, wherein he took the first aid treatment and later on he was shifted to St. John's Hospital, Bangalore, wherein he took the treatment as an inpatient by spending huge amount.
3. Prior to the accident he was hale and healthy by working as a Data entry operator and job worker and getting monthly income of Rs.10,000/-, after the accident he could not do the work 3 (SCCH-8) M.V.C.No.4422/2009 as before. The accident in question was taken place on the rash and negligent driving of the BMTC bus driver. Thereby, the Kumaraswamy Layout Traffic Police have registered the case against the BMTC bus driver in their police station Crime No.21/2009 for the offences punishable u/s 279 and 337 of IPC and Section 134(A) & (B) R/w Section 187 of M.V. Act. The respondent No.1 being the owner and respondent No.2 being the insurer are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondents were appeared through their respective counsel and filed their written statement. The respondent No.1 in his written statement has alleged that the claim petition filed by the petitioner is not maintainable either in law or on facts and he has denied that on 13-02-2009 the petitioner was traveling in a BMTC bus bearing No.KA-01-F-2784 and the bus driver has stopped the bus near bus stop in order to facilitate the passengers to get down from the bus, when the petitioner was in the process of alighting from the bus, the driver of the bus has driven the same in a rash and negligent manner, as a result the petitioner was fell down and his left foot was crushed and he was shifted to T.R. Hospital, wherein he took the first aid treatment and later on he was shifted to St. John's Hospital, Bangalore, wherein he took the treatment as an inpatient by 4 (SCCH-8) M.V.C.No.4422/2009 spending huge amount and he has admitted that he has insured the bus with the second respondent and he has alleged that the as on the date of the alleged accident the bus was not at all involved in the accident. So, he is not liable to pay any compensation to the petitioner, but he has admitted that he is the RC owner of the bus bearing No.KA-01-F-2784 and the second respondent is the insurer of the said vehicle and he has denied the age, avocation and income of the petitioner and prays for reject the claim petition.
5. The respondent No.2 in its written statement has alleged that the claim petition filed by the petitioner is not maintainable either in law or on facts and he has denied the averments made in column No.1 to 6 of the claim petition and he has alleged that the BMTC bus bearing No.KA-01-F-2784 was not at all involved in the accident, as the petitioner has lodged the false complaint after ten days from the alleged accident and falsely implicated the bus in order to get the compensation and he has denied that the petitioner was traveling in the bus, when the petitioner was get down from the bus, the driver of the bus has driven the same in a rash and negligent manner, as a result he was fell down and sustained injuries and took the treatment as an inpatient and as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence and prays for reject the claim petition.
5 (SCCH-8) M.V.C.No.4422/2009
6. On the basis of the pleadings of the parties, my Predecessor has framed the following issues.
1. Whether the petitioner proves that he has sustained grievous injuries as mentioned in column No.11, in a road traffic accident on 13-02-2009 at about 2.00 p.m., on Kothunoor dinne road, Surabi bus stand, J.P. Nagar, Bangalore, due to the rash and negligent driving of the driver of the BMTC Bus bearing No.KA-01-F-2784?
2. Whether petitioner is entitled for any compensation? If so to what extent and from whom?
3. What Order or Award?
7. The petitioner in order to prove his case has examined himself as PW1 and got marked the documents as Ex.P1 to Ex.P10 and he has examined one witness on his behalf as PW2 and got marked the documents as Ex.P11 and Ex.P12. The respondent No.1 has examined its driver as RW2 and got marked the document as Ex.R6 and the respondent No.2 has examined five more witnesses as RW1 and RW3 to RW6 and got marked the documents as Ex.R1 to Ex.R5 and Ex.R7 to Ex.R17.
8. Heard arguments on both side.
9. My finding on the above issues are as under:
Issue No.1: Affirmative 6 (SCCH-8) M.V.C.No.4422/2009 Issue No.2: Partly affirmative Issue No.3: As per the final order for the following.
REASONS
10. Issue No.1:
The petitioner being said to be the injured has approached this court on the ground that on 13-02-2009 at about 2.00 p.m., he was traveling in BMTC bus bearing No.KA-01-F-2784 and said bus reached the Surabinagar bus stop on Kothnur dinne main road, J.P. Nagar 7th Phase, Bangalore, the driver of the said bus has stopped the bus in order to facilitate the passengers to get down from the bus, the petitioner was in the process of alighting from the bus, the driver of the bus abruptly moved the bus, in a high speed, rash and negligent manner, without observing the traffic rules and regulations, he was fell down and sustained grievous injuries and took the treatment as an inpatient by spending huge amount. Thereby, he has filed the instant claim petition against the respondents.
11. The petitioner in order to prove his case has filed his affidavit as his chief examination as PW1, in which he has stated that on 13-02-2009 at about 2.00 p.m., he was traveling in BMTC bus bearing No.KA-01-F-2784, while reaching the Surabinagar bus stop on Kotunoor dinne main road, J.P. Nagar 7th Phase, Bangalore, the driver of the said bus has stopped the bus in order 7 (SCCH-8) M.V.C.No.4422/2009 to facilitate the passengers to get down from the bus, the petitioner was in the process of alighting from the bus, the driver of the bus abruptly moved the bus in a high speed, in a rash and negligent manner, endangering human life, without observing traffic rules and regulations, due to the terrific impact he was fell down and sustained grievous injuries. So, he was shifted to T.R. Hospital, wherein he took the first aid treatment and later on he was shifted to St. John's Hospital, Bangalore, wherein he took the treatment as an inpatient by spending huge amount. The accident in question was taken place on the rash and negligent driving of the BMTC bus driver. Thereby, the Kumaraswamy Layout Traffic Police have registered the case against the BMTC bus driver in their police station Crime No.21/2009 for the offences punishable u/s 279 and 337 of IPC and Section 134(A) & (B) R/w Section 187 of M.V. Act. The PW1 in his cross examination has admitted at about 2.00 p.m., the bus was stopped and he was trying to get down from the bus and he has denied that as he was fallen in some other place and sustained the injuries and he has admitted that he has informed the doctor about the injury sustained by him in a road traffic accident and he has denied that the alleged vehicle was not at all involved in the accident and he was not at all traveling in the alleged bus and in collusion with the police has falsely implicated the bus in order to get the compensation.
8 (SCCH-8) M.V.C.No.4422/2009
12. The RW2 who is said to be the driver of the bus as on the date of the alleged accident in his evidence has stated that on 13- 02-2009, when he was on duty as a driver in BMTC bus bearing No.KA-01-F-2784, route from K.R. Market to Jambusavari Dinne, the petitioner did not met with an accident as alleged in the claim petition. Infact no accident was taken place on the alleged spot, but the petitioner has filed the false and baseless claim petition. The RW2 in his cross examination has denied that after the accident himself and the conductor were shifted the petitioner to the T.R. Hospital and they were provided the first aid treatment, but he has admitted that he has not challenged the charge sheet filed by the I.O., by filing a writ petition before the Hon'ble High Court of Karnataka and he has admitted that he has appeared before the Criminal Court and his case was came to be acquitted and the police have filed the charge sheet against him and he has denied in the Criminal Court he pleads guilty and paid the fine of Rs.2,500/- and admitted the signature appeared on the Ex.R6 belongs to him and he has denied that he has pleads guilty before the Criminal Court with an intention to help the complainant.
13. The learned counsel for the respondent No.2 has examined the than PSI of Kumaraswamy Layout Traffic Police Station in his evidence has stated, since 3 months, he was working as a PSI at Cubbon Park Traffic Police Station and he was worked 9 (SCCH-8) M.V.C.No.4422/2009 at Kumaraswamy Layout Traffic Police Station, since 2006 to August 2011 as ASI and he has stated that he has received the complaint and registered the case and after investigation has filed the charge sheet against the driver of the bus. The learned counsel for the respondent No.2 has requested the Court to treat the witness as hostile witness for his cross examination, accordingly the RW3 has been treated as hostile witness and permitted the learned counsel for the respondent No.2 for cross examination of the RW3. The RW3 in his cross examination has denied that he has threatened the BMTC bus driver and registered the false case against the offending vehicle driver.
14. It is the specific case of the respondent No.1 and 2 that the alleged bus was not at all involved in the accident, but the petitioner in collusion with the police has falsely implicated and filed the false case on 19-02-2009. It is an admitted fact that the accident was occurred on 13-02-2009 and he has lodged the complaint on 19-02-2009 thus there is a 6 days delay in lodging the complaint. Now, the question arises whether the delay in lodging the complaint is the ground to reject the claim petition. Therefore, this Court drawn its attention on the decision reported in 2011 ACJ 911 in which it is held that;
Motor Vehicles Act, 1988, Section 166(1)--Claim application--FIR--Delay in lodging-Effect of--Truck while being reversed hit and injured a minor boy sitting 10 (SCCH-8) M.V.C.No.4422/2009 on the side of the road in front of his house--Accident was witnessed by father of the injured and another person and they took him to hospital--Cause of injury mentioned in injury report prepared by the doctor is road accident--Police came to hospital on the next day of accident but no F.I.R. was recorded as father of injured was under mental agony and stress and he was more concerned to get medical treatment for his son-- Father lodged FIR after three months of accident and he explained the reasons that his son was seriously injured and his treatment was more important; some persons in the locality pressurized him that compensation matter could be sorted out amicably since driver of vehicle was his neighbour; and he was not aware of the niceties of law that lodging of FIR was condition precedent for filing claim application--Owner of truck admitted the accident--Neither the driver entered witness box to deny the accident nor the opposite parties led any evidence in rebuttal to the evidence of the claimant--Occurrence of accident due to rash and negligent driving of truck by its driver is thus established--Tribunal dismissed claim application on the ground that FIR was lodged belatedly--High Court upheld the order of the Tribunal--Whether the claim application can be dismissed on the ground of delay in lodging FIR--Held no; lodging of FIR certainly proves factum of accident but delay in doing so cannot be the main ground for rejecting claim application.
15. On careful perusal of the said decision, in the above said decision son was met with an accident, so the father was shifted to 11 (SCCH-8) M.V.C.No.4422/2009 the hospital and he was accompanying with the son and he lodged the complaint after expiry of 3 months and filed the claim petition and the said claim petition was came to be rejected. He has approached the High Court and the High Court has upheld the order of the Tribunal. So, he has filed the appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court held that delay in lodging the complaint cannot be the main ground for rejecting the claim petition, as the father has explained in the complaint why the delay is caused in lodging the complaint. In the instant case the medical records clearly reflects that soon after the accident, he got admitted to the Hospital and took the treatment for the injuries sustained by him in a road traffic accident said to have been taken place on 13-02-2009, that is the reason why the delay was caused in lodging the complaint. Therefore, the decision as stated above is directly applicable to the case on hand. Therefore, the delay in lodging the complaint is not a ground to reject the claim petition.
16. The RW2 being said to be the driver of the BMTC bus bearing No.KA-01-F-2784 in his evidence has denied about the accident said to have been taken place on 13-02-2009, but in his cross examination has admitted that the I.O., has charge sheeted against him on the ground that the accident in question was taken place on his own negligence, in his cross examination has also admitted that he has appeared before the Criminal Court and case 12 (SCCH-8) M.V.C.No.4422/2009 was acquitted, but the reasons best known to him has not placed any materials to show that the Criminal Court has been acquitted to the driver of the offending vehicle. However, he has admitted the signature appeared on the Ex.R6. Ex.R6 is the plea which was recorded by the Criminal Court in which he has admits about the accident caused by him that itself is clear that the driver of the offending vehicle has appeared before the Criminal Court and pleaded guilty and paid the fine. So, Ex.R6 is the piece of evidence clearly reflects that the driver of the offending vehicle has pleaded guilty before the Criminal Court and paid the fine, generally either the BMTC bus drivers nor the KSRTC drivers will not pleads guilty, before the Criminal Court they will contest the case, but in the instant case the reasons best known to the offending vehicle driver has appeared before the Court and pleads guilty and paid the fine, that itself is clear about the involvement of the bus and moreover the respondent No.1 and 2 have not challenged the charge sheet filed against the offending vehicle driver. It is not the case of the respondent No.2 that the respondent No.1 has been colluding with the petitioner have falsely implicated the bus, since the respondent No.1 being the owner has contested the case question of implicating the bus in the alleged accident does not arise, even the respondent No.2 has not at all elicited from the mouth of the RW3 who is the than ASI that the petitioner and the respondent No.1 13 (SCCH-8) M.V.C.No.4422/2009 were colluding with each other were filed the false complaint and he has registered the false case against the offending vehicle driver, but he has suggested the RW3 that he has threatened the bus driver and lodged the false complaint against him, but nothing is placed on record to substantiate the said defence. In the absence of the materials on record, it is clear that the accident in question was taken place on the rash and negligent driving of the offending vehicle driver.
17. The petitioner in support of his oral evidence he has produced the documents marked as Ex.P1 to Ex.P12. Ex.P2 is the information filed by one Smt. Devikuttappan in which she has stated that her son Devadas was traveling in a BMTC bus bearing No.KA-01-F-2784 on 13-02-2009, when the said bus was stopped near Kothanoor Dinne main road, Surabhi Nagar, J.P. Nagar 7th Phase, Bangalore, the driver of the bus has stopped the bus in order to facilitate the passengers to get down from the bus, when her son was trying to get down from the bus, the driver of the bus has abruptly driven the same in a rash and negligent manner, as a result her son was fell down and back wheel of the bus was ran over on his left foot, as a result her son has sustained grievous injuries. So, the bus driver has shifted him to the nearest hospital, when her son was trying to shifted to some other hospital, so she came to the hospital and shifted her son to the St. Johns hospital 14 (SCCH-8) M.V.C.No.4422/2009 and enquired her son, came to know about the accident and she did not know where she has to file the complaint soon after the accident, that is the reason why the delay was caused in lodging the complaint. So based on the information the Kumaraswamy Layout Traffic Police have registered the case against the BMTC bus driver in their police station Crime No.21/2009 for the offences punishable u/s 279 and 337 of IPC and Section 134(A) & (B) R/w Section 187 of M.V. Act. The learned counsel for the respondent No.1 and 2 were cross examined the PW1, but nothing is elicited to disbelieve his evidence, though they have suggested the PW1 that the alleged vehicle was not at all involved in the accident nor caused the accident for which he has denied the same. The respondent No.1 being the owner of the BMTC has examined the RW2 who is said to be the driver of the bus as on the date of the alleged accident, though he has denied the involvement of the bus and the accident said to have been taken place on 13-02-2009, but in his cross examination has admitted that the I.O., has filed the charge sheet against him and he has not challenged the charge sheet and he has also admitted that he has appeared before the Criminal Court and his case was acquitted, but nothing is placed on record to show that he was acquitted before the Criminal Court, further he has admitted that the signature appeared on the Ex.R6 belongs to him. Ex.R6 is the 15 (SCCH-8) M.V.C.No.4422/2009 plea recorded by the Criminal Court in which he has admitted the plea, which recorded by the Criminal Court, that itself is clear that the driver of the offending vehicle has appeared before the Criminal Court and pleaded guilty. So, Ex.R6 is the piece of the evidence to supports the case of the petitioner. The learned counsel for the respondent No.2 while cross examination of the RW2 has suggested that the vehicle was not at all involved in the accident with an intention to help the complainant has appeared before the Criminal Court and pleaded guilty for which he has denied the same. So one thing is clear that the driver of the offending vehicle has appeared before the Criminal Court and pleads guilty and paid the fine. The learned counsel for the respondent No.2 while cross examination of the RW2 nothing is established that the respondent No.1 has colluding with the petitioner have filed the false complaint by implicating the alleged vehicle. In the absence of the materials on record, it is clear that the accident was occurred due to the rash and negligent driving of the offending vehicle driver, either the respondent No.1 nor the respondent No.2 have not challenged the complaint lodged against the offending vehicle driver nor the charge sheet. So, the Ex.P1 and Ex.P2 are remained unchallenged. Ex.P4 and Ex.P5 are the panchanama and sketch clearly reflects that the accident in question was taken place on the rash and negligent driving of the 16 (SCCH-8) M.V.C.No.4422/2009 bus driver. Ex.P7 is the wound certificate clearly reflects that the petitioner has sustained the injuries in a road traffic accident. Ex.P8 is the discharge summary clearly reflects that the petitioner has took the treatment as an inpatient in connection of the injuries sustained by him in a road traffic accident. Ex.P9 to Ex.P12 are clearly reflects that the petitioner has took the treatment as an inpatient in connection of the injuries sustained by him in a road traffic accident said to have been taken place on 13-02-2009. So, the documents marked as Ex.P1 to Ex.P12 are coupled with the oral evidence of PW1. Though, the respondent No.2 has examined the witnesses on his behalf as RW4 and RW5, but their evidence will not help the respondent to disprove the oral and documentary evidence of the petitioner, as the documents produced by the RW4 and RW5 are the belongs to them, who are the authors of the documents, as the RW2 being the driver of the offending vehicle has admitted that he has pleads guilty before the Criminal Court and the materials on record supports the case of the petitioner about the rash and negligent driving of the offending vehicle. So, the petitioner has proved his case through oral and documentary evidence that the accident in question was taken place on the rash and negligent driving of the BMTC bus driver. Hence, I answer this issue in the affirmative. 17 (SCCH-8) M.V.C.No.4422/2009
18. Issue No.2:
The PW1 being the injured in his evidence has clearly stated that on 13-02-2009 at about 2.00 p.m., he was traveling in a BMTC bus and the driver of the said bus has stopped the same on Kothunoor Dinne main road, near Surabi Nagar bus stand, when he was in a process of alighting from the bus, the driver of the bus has driven the same abruptly in high speed, in a rash and negligent manner, as a result he was fell down and sustained the following injuries;
1) Degloving injury over dorsum of left foot measuring 10x15 cm exposing tendons and bones.
19. So, he was shifted to T.R. Hospital, wherein he took the first aid treatment and later on he was shifted to St. John's Hospital, Bangalore, wherein he took the treatment as an inpatient. During the course of treatment wound debridement on the day of admission and wound was dressed and he was treated till 09-03-2009 and after the discharge he took the follow up treatment as per the advise of the doctor. So, he has spent a sum of Rs.25,000/- towards attendant expenses and spent a sum of Rs.50,000/- towards hospitalization and medical expenses, but he has lost a sum of the medical bills and he has produced the medical bills worth of Rs.37,712.25 Paisa. Prior to the accident he was hale and healthy by working as a Data entry operator and job 18 (SCCH-8) M.V.C.No.4422/2009 worker and getting monthly income of Rs.10,000/-, after the accident he could not do the work as before and he was not attending the work for a period of one year. So, he lost the income due to the accidental injuries and he is suffering severe pain on his left as a result of which he cannot stand for a long time nor walk for long distance. The PW1 in his cross examination has admitted that he has not sustained any fracture on his left leg and he has not produced any document to show that he was getting monthly income of Rs.10,000/- due to his work as alleged in the claim petition and his mother has lodged the complaint and he has denied that he has not fallen from the bus nor sustained any injuries and he has fallen some where and sustained injuries.
20. The PW2 being the Orthopaedic Surgeon at Bowring and Lady Curzon Hospital, in his evidence has stated that the petitioner has met with an accident said to have been taken place on 13-02-2009, as he has sustained the following injuries;
1) Degloving injury over dorsum of left foot measuring 10x15 cm exposing tendon and bones.
21. So, initially he was admitted to St. John's Medical College and Hospital on 13-02-2009 and he was operated wound debridement done and again he was operated on 02-03-2009 split skin grafting done. So, the petitioner has facing the following complaints;
19 (SCCH-8) M.V.C.No.4422/2009
a) Pain and scar over left foot.
b) Weakness of left lower limb.
c) Stiffness left ankle and foot.
22. On examination he found the following difficulties;
a) Patient walks with limp on to left side.
b) Puckered scar over dorsum of left foot.
c) Disfigurement of Neil of left great toe.
d) Loss of exertion 4 medial 4 toe.
e) Limitation of left ankle movement by 40%.
f) Muscle power around left ankle is Fr IV against Fr V.
g) Loss of muscle over medial 4 toes dorsum of left foot.
h) Hypopigrment scar over antero medial aspect of left thigh.
23. So, the petitioner has sustained the disability to an extent of 22% to the left lower limb and 11% disability to the whole body. The PW2 in his cross examination has admitted that he has not treated the petitioner personally, but he has examined for issue of assessment of disability due to the accidental injuries on 14-02-2013 the petitioner has appeared for assessing his disability, at that time he has verified the wound certificate and discharge summary and he has denied that he has created the Ex.P11 and Ex.P12 in order to help the petitioner to get more compensation and the Ex.P12 is not relating to the petitioner.
24. The PW1 being the injured in his evidence has clearly stated about the injuries sustained by him in the accident and also stated about the difficulties facing by him a road traffic accident. 20 (SCCH-8) M.V.C.No.4422/2009 The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. So, the evidence of the PW2 corroborate the evidence of the PW1. Ex.P7 is the wound certificate issued by the St. John's Medical College Hospital, Bangalore clearly reflects that the petitioner has sustained the following injuries;
1) Degloving injury over dorsum of left foot measuring 10x15 cm exposing tendons and bones.
25. So, the above said injury is grievous in nature. Ex.P8 is the discharge summary clearly reflects that the petitioner soon after the accident has got admitted to the St. John's Medical College Hospital, wherein he took the treatment as an inpatient from 13-02-2009 to 09-03-2009 in all 27 days and the history of the injury has been shown as RTA on 13-02-2009 at about 2.30 p.m., as the back wheel of the bus went on his left foot. Ex.P9 is the medical bills clearly reflects that the petitioner has took the treatment in connection of the injuries sustained by him in a road traffic accident. Ex.P10 to Ex.P12 are clearly reflects that the petitioner took the treatment in connection of the injuries sustained by him in a road traffic accident. So considering the injury sustained by the petitioner in a road traffic accident and the evidence of PW1 and PW2 as well as duration of treatment, it is 21 (SCCH-8) M.V.C.No.4422/2009 just and necessary to grant just compensation to the petitioner in the following heads;
a)Pain and suffering.
The PW1 being the injured in his evidence has clearly stated that he has sustained degloving injury over dorsum of left foot measuring 10x15 cm exposing tendons and bones in a road traffic accident said to have been taken place on 13-02-2009 and took the treatment as an inpatient for a period of 27 days. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. So considering the evidence of the PW1 and PW2 and the injuries sustained by the petitioner as well as the duration of treatment he would have sustained pain and agony for which, it is just and necessary to award compensation of Rs.30,000/- for the above head, it will meet the ends of justice. Hence, Rs.30,000/- is awarded for the above head.
b) Loss of income during laid up period:
The PW1 being the injured in his evidence has stated that prior to the accident he was hale and healthy by working as a Data entry operator and job worker and getting monthly income of Rs.10,000/-, after the accident he could not do the work as before. But the reasons best known to him has not examined any independent witness nor produced any documents to show that
22 (SCCH-8) M.V.C.No.4422/2009 prior to the accident he was working as a Data entry operator and job worker by getting monthly income of Rs.10,000/-. In the absence of the materials on record, it is very difficult to believe the income of the petitioner as alleged in the claim petition. So considering the age and skill of the petitioner and the present life condition, it is just and necessary to consider the monthly notional income of Rs.6,000/- it will meet the ends of justice. Ex.P7 is the wound certificate clearly reflects that the petitioner has sustained grievous injury. Ex.P8 is the discharge summary clearly reflects that he has sustained the grievous injury and took the treatment as an inpatient for a period of 27 days. So, the petitioner might have lost income for a period of three months. So three months income comes to Rs.18,000/-. So Rs.18,000/- is granted for the above head.
c) Medical expenses The PW1 being the injured in his evidence has stated that he has sustained the injury in a road traffic accident and took the treatment as an inpatient by spending huge amount of Rs.50,000/-, but on record the petitioner has produced the medical bills worth of Rs.37,712.25 Paisa. Though the learned counsel for the respondent has disputed the medical bills produced by the petitioner, but nothing is placed on record to show that the medical bills produced by the petitioner are not relating to the 23 (SCCH-8) M.V.C.No.4422/2009 injuries sustained by him in a road traffic accident. In the absence of the materials on record, it is clear that the petitioner has took the treatment in connection of the injuries sustained by him in a road traffic accident. Therefore, Rs.37,713/- is granted for the above head.
d) Loss of future earning:
The PW1 being the injured in his evidence has clearly stated that he has sustained grievous injuries in a road traffic accident said to have been taken place on 13-02-2009 and took the treatment as an inpatient for a period of 27 days. Due to the accidental injuries he could not do the work as before, as he is suffering severe pain on his left as a result of which he cannot stand for a long time nor walk for long distance. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. According to him the petitioner has sustained disability to an extent of 22% to left lower limb and 11% disability to the whole body. The PW2 in his cross examination has admitted that he has not treated the petitioner personally and the petitioner haas not sustained any fracture. So considering the evidence of the PW1 and PW2 and the medical records and the injuries sustained by the petitioner and duration of treatment as well as his avocation, it is just and necessary to consider the disability of 8% of the whole
24 (SCCH-8) M.V.C.No.4422/2009 body instead of 11%, it will meet the ends of justice. So his income is already considered as Rs.6,000/- per month. Ex.P7 is the wound certificate and Ex.P8 is the discharge summary clearly reflects that as on the date of the alleged accident his age was 18 and 20 years respectively. Ex.P11 is the outpatient record clearly reveals that his age has been shown as 24 years, but whereas the petitioner in his claim petition itself he has clearly stated that as on the date of the alleged accident his age was 20 years. So considering the age as per the Ex.P7, Ex.P8 and Ex.P11, the petitioner age is taken into consideration as 24 years as on the date of the alleged accident. So by virtue of the Sarlaverma Vs. Delhi Transport Corporation Ltd., reported in 2009 ACJ 1298 the multiplier applicable is 18. So the loss of future earning is works out as under;
Rs.6,000X12X18X8/100=1,03,680/-.
Hence, the petitioner is entitled for Rs.1,03,680/- for the above head.
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
The PW1 being the injured in his evidence has clearly stated that he has sustained the injuries in a road traffic accident said to have been taken place on 13-02-2009 and took the treatment as an inpatient for a period of 27 days and he has also took the treatment as an outpatient. The PW2 being the Orthopaedic
25 (SCCH-8) M.V.C.No.4422/2009 Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. So considering the evidence of PW1 and PW2 and duration of treatment as well as the complaints and disability of the petitioner after the accident, it is just and necessary to grant Rs.15,000/- for the above head, it will meet the ends of justice. So Rs.15,000/- is granted for the above head.
26. Thus the total award stands as follows:
1.Pain and suffering Rs. 30,000-00
2.Loss of income during laid up Rs. 18,000-00 period
3.Medical bills Rs. 37,713-00
4.Loss of future earning Rs. 1,03,680-00
5.Loss of amenities, conveyance, Rs. 15,000-00 food and nourishment, attendant charges etc. Total Rs. 2,04,393-00
27. The learned counsel for the respondent No.2 while canvassing his arguments has submitted that the place of accident as shown in the FIR, complaint and medical records are different, that itself is clear that the accident was not taken place as alleged by the petitioner and the vehicle was not at all involved in the accident. The RW4 and RW5 who are the Assistant Traffic Superintendent and Senior Depot Manager in their evidence they have clearly stated about the non involvement of the vehicle and the said counsel has drawn the court attention on the documents marked as Ex.R7 to Ex.R15. On careful perusal of the said 26 (SCCH-8) M.V.C.No.4422/2009 documents, those documents are prepared by the BMTC authorities. If at all the BMTC bus was not at all involved in the accident the respondents would have examined the Motor Vehicles Inspector to show that the vehicle was not involved in the accident, since the Ex.P6 clearly reflects that the Motor Vehicles Inspector has inspected the bus and issued the Ex.P6. Though, the respondent No.2 has examined the RW3 who is the than ASI has not elicited anything from his mouth about the seize of the bus for the purpose of Motor Vehicles inspection, that itself is clear that the offending vehicle was involved in the alleged accident and the petitioner has sustained the injuries. Merely on the ground that the BMTC authorities have produced the documents marked as Ex.R7 to Ex.R15 it does not mean that the alleged vehicle was not at all involved in the accident. The learned counsel for the respondent No.2 has much argued about the place of accident, but the materials on record clearly reflects about the place of accident where actually the accident was occurred and the petitioner has sustained injuries. So, the documents marked on behalf of the petitioner corroborate the evidence of the PW1 to prove the place of accident in which place the BMTC bus has stopped the vehicle and without giving any signal has suddenly moved the bus, as a result the petitioner has sustained the injuries. Therefore, the arguments 27 (SCCH-8) M.V.C.No.4422/2009 advanced by the learned counsel for the respondent No.2 on this aspect holds no water.
28. The respondent No.2 being the insurer in its written statement has not stated about the issuance of the policy in respect of the offending vehicle. But the RW6 who is the Administrative Officer of the second respondent has produced the policy copy which was marked as Ex.R16 clearly reflects that the respondent No.1 has insured the offending vehicle with the respondent No.2 and the period of policy from 30-12-2008 to 29- 12-2009. The accident in question was taken place on 13-02-2009. So one thing is clear that as on the date of the alleged accident the policy was in existence.
29. Though, the respondent No.2 has taken up the contention that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to drive the same. But the reasons best known to the respondent No.2 has not placed any materials on record to show that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence and Ex.P3 is the charge sheet filed by the I.O., nowhere discloses that the offending vehicle driver was not holding valid and effective driving licence as on the date of the alleged accident. If at all the driver of the offending 28 (SCCH-8) M.V.C.No.4422/2009 vehicle was not holding the valid and effective driving licence the I.O., would have charge sheeted against the offending vehicle driver for the offence punishable under Section 181 of MV Act. So on record there is no material to show that the offending vehicle driver was not holding valid and effective driving licence as on the date of the alleged accident. Therefore this Court drawn its attention on the decision reported in 2011 ACJ 209 in between National Insurance Co. Ltd., vs. Tahira Begum and others reads like thus;
Motor Vehicles Act, 1988, section 149(2)(a)(ii) - Motor insurance - Driving licence - Burden of proof - Liability of insurance company - Insurance company disputed its liability on the ground that driver of the offending vehicle was not holding a valid driving licence at the time of accident - Insurance company led no evidence to establish its contention - Whether the burden of proof was on the insurance company and it has not discharged its burden by leading cogent evidence - Held: yes; insurance company is liable.
30. On careful perusal of the said decision, in the said decision the insurance company has challenged the Award passed by the Tribunal on the ground that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence. But the insurance company has not placed any materials nor cogent evidence to substantiate its 29 (SCCH-8) M.V.C.No.4422/2009 defence. Thereby, the appeal filed by the insurance company was came to be dismissed. In the instant case also though the respondent No.2 has taken up the defence that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence, but nothing is placed on record nor led any cogent evidence to substantiate its defence. Therefore, the decision as stated above is directly applicable to the case on hand. So one thing is clear that as on the date of the alleged accident the policy was in existence and the offending vehicle driver was holding valid and effective driving licence. So, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. But in view of the valid insurance policy the respondent No.2 alone is liable to pay the compensation to the petitioner with interest at the rate of 6% p.a. from the date of petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative.
31. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
ORDER The petition filed by the petitioner under section 166 of M.V. Act is partly allowed, with costs. The petitioner is entitled for compensation of Rs.2,04,393/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation. 30 (SCCH-8) M.V.C.No.4422/2009 The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 being the insurer shall pay the compensation amount with interest at the rate of 6% p.a. from the date of the claim petition till its realisation within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of his choice for a period of three years and the remaining 60% shall be released to him by means of A/c payee cheque on proper identification. The petitioner is at liberty to withdraw the periodical interest accrued on his deposit amount from time to time.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 13th day of January 2015.
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioner:
31 (SCCH-8) M.V.C.No.4422/2009 PW1 Sri Devadas PW2 Dr. S. Rajanna List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Charge sheet
Ex.P4 True copy of Spot Mahazar
Ex.P5 True copy of Sketch
Ex.P6 True copy of IMV Report
Ex.P7 True copy of Wound Certificate
Ex.P8 Discharge summary
Ex.P9 Medical bills (52 in nos.) amounting to
Rs.37,712.25 Paisa
Ex.P10 Medical prescriptions
Ex.P11 Outpatient records
Ex.P12 One X-ray film
List of the witnesses examined on behalf of respondents:
RW1 Arokia Swamy A. RW2 Sri Manjunath K.C. RW3 Sri T.L. Byatagaiah RW4 Sri D.N. Jayashankar RW5 Sri N. Krishnamurthy RW6 Smt. Kusuma K.
List of the documents marked on behalf of respondents:
Ex.R1 Authorization letter Ex.R2 Copy of the intimation regarding Medico Legal Case Ex.R3 MLC Register extract 32 (SCCH-8) M.V.C.No.4422/2009 Ex.R4 Outpatient record from page No.1 to 10 Ex.R5 Inpatient record from page No.12 to 82 Ex.R6 Certified copy of Plea Ex.R7 Copy of Extract of February 2009 Ex.R8 Out register extract relating to bus No.KA-01-F-2784 dated 13-02-2009 Ex.R9 In register relating to bus No.KA-01-F-2784 dated 14- 02-2009
Ex.R10 In register extract dated 19-02-2009 Ex.R11 Out register extract dated 20-03-2009 Ex.R12 In register extract dated 20-03-2009 Ex.R13 In register extract dated 21-03-2009 Ex.R14 Attendance register extract for the month of February 2009 Ex.R15 Document relating to BMTC Ex.R16 Policy copy Ex.R17 Document relating to BMTC (P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.