Bangalore District Court
In 1) Smt.Rajeshwari vs In 1) Ajith Kour Gurbajan Singh on 25 March, 2022
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BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES &
MEMBER PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BENGALURU
(S.C.C.H. - 1)
DATED THIS THE 25th DAY OF MARCH'2022
PRESENT : SMT.PRABHAVATI M.HIREMATH, B.A.,LL.B., (Spl).,
MEMBER, PRL. M.A.C.T., BENGALURU
M.V.C. No.3354/2017, 3355/2017, 3356/2017, 3357/2017
& 3358/2017
PETITIONERS IN 1) SMT.RAJESHWARI,
MVC W/o.Late Balakrishna Reddy,
No.3354/2017 Aged about 48 years,
2) SRI JYOTHISWAR B.,
S/o.Late Balakrishna Reddy,
Aged about 25 years,
3) SRI SURESH B.,
S/o.Late Balakrishna Reddy,
Aged about 24 years,
All are residing at
No.144/A, Balaji Road,
Tyagarajanagar,
Bangalore 560 028.
PETITIONER IN MR.SURESH B.,
MVC S/o.Late Balakrishna Reddy,
No.3355/2017 Aged about 24 years,
Residing at
No.144/A, Balaji Road,
Tyagarajanagar,
Bangalore 560 028.
PETITIONER IN SMT.RAJESWARI,
MVC W/o.Late Balakrishna Reddy,
No.3356/2017 Aged about 48 years,
No.144/A, Balaji Road,
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Tyagarajanagar,
Bangalore 560 028.
PETITIONER IN MR.MOHAN P.,
MVC S/o.P.Pandu Reddy,
No.3357/2017 Aged about 25 years,
R/at No.1, Radhakrishna Road,
Ganapatipura 5th Cross,
Chunchagatta Main Road,
Konanakunte,
Bangalore 560 062.
PETITIONER IN MR.JYOTHISWAR B.,
MVC S/o.Late Balakrishna Reddy,
No.3358/2017 Aged about 25 years,
Residing at
No.144/A, Balaji Road,
Tyagarajanagar,
Bangalore 560 028.
Petitioners are represented by Rathnappa B.R., Advocate
- Vs -
RESPONDENTS IN 1) AJITH KOUR GURBAJAN SINGH,
MVC A/P... CIV Colony,
No.3354/2017 Aurangabad Road,
Ahamadnagar,
Maharastra 414 003.
(RC Owner of the Vehicle bearing
Reg.No.MH.04/CA.4847)
2) MOHAN VIJAY KUMAR
PATHARKAR,
S/o.Sri Vijaykumar,
Aged about 39 years,
House No.5633, Misal Galli,
Sarjaipura, Ahmednagar 414 001,
Maharastra State.
3) THE MANAGER,
United India Insurance Co.,
Limited,
Ahmednagar DO 162500,
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Ahmednagar 414001,
Maharastra State.
Respondent No.1 - represented by B.Honnalingegowda,
Advocate
Respondent No.2 - represented by H.Rajanna, Advocate
Respondent No.3 - represented by Manoj Kumar M.R.,
Advocate
RESPONDENTS IN 1) AJITH KOUR GURBAJAN SINGH,
MVC A/P... CIV Colony,
No.3355/2017 Aurangabad Road,
AND 3357 AND Ahamadnagar,
3358/2017: Maharastra 414 003.
(RC Owner of the Vehicle bearing
Reg.No.MH.04/CA.4847)
2) MOHAN VIJAY KUMAR
PATHARKAR,
S/o.Sri Vijaykumar,
Aged about 39 years,
House No.5633, Misal Galli,
Sarjaipura,
Ahmednagar 414 001,
Maharastra State.
3) THE MANAGER,
United India Insurance Co., Ltd.,
Ahmednagar DO 162500,
Ahmednagar 414001,
Maharastra State.
4) RAJESWARI,
W/o.Late Balakrishna Reddy,
Aged about 48 years,
No.144/A, Balaji Road,
Tyagarajanagar,
Bangalore 560 028.
5) THE LEGAL MANAGER,
Oriental Insurance Com., Ltd.,
Door No.13, Yathiraja Mutt
Building.
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No.199, 1st Floor, 2nd Main Road,
Sampige Road, Near 11th Cross,
Malleshwaram, B'lore-03.
Respondent No.1 is represented by
B.Honnalinge Gowda, Advocate
Respondent No.2 is represented by
H.Rajanna, Advocate
Respondent No.3 is represented by
Janardhan Reddy,
Respondent No.4 - Sanne Gowda, S.,
Advocate
Respondent No.5 - Manoj Kumar M.R.,
Advocate
RESPONDENTS IN 1) AJITH KOUR GURBAJAN SINGH,
MVC A/P... CIV Colony,
No.3356/2017 Aurangabad Road,
Ahamadnagar,
Maharastra 414 003.
(RC Owner of the Vehicle bearing
Reg.No.MH.04/CA.4847)
2) MOHAN VIJAY KUMAR
PATHARKAR,
S/o.Sri Vijaykumar,
Aged about 39 years,
House No.5633, Misal Galli,
Sarjaipura,
Ahmednagar 414 001,
Maharastra State.
3) THE MANAGER,
United India Insurance Co.,
Limited,
Ahmednagar DO 162500,
Ahmednagar 414001,
Maharastra State.
4) RAJESHWARI,
W/o.Late Balakrishna Reddy,
Aged about 48 years,
No.144/A, Balaji Road,
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Tyagarajanagara,
Bengaluru 560 028.
Respondent No.1 - represented by
B.Honnalingegowda, Advocate
Respondent No.2 - represented by
H.Rajanna, Advocate
Respondent No.3 - represented by
Manoj Kumar M.R., Advocate
Respondent No.4 - Sanne Gowda, S.,
Advocate
*******
COMMON JUDGMENT
All these petitions filed under Section 166 of the Motor
Vehicles Act, claiming compensation, are arising out of the same
accident.
2) In all 5 petitions, petitioners have averred similar facts with
reference to the occurrence of the accident, as under:-
On 04.09.2016, at about 09.30 to 09.32 am., the deceased
Balakrishna Reddy along with his family members, in order to go
to Sai Baba Pilgrimage Trip, were proceeding in their Scorpio Car
No.KA.41/N.1818 from Bengaluru to Shirdi. When they were
proceeding near Rahata Village, Ahmednagar District,
Maharastra, in front of image graphic shop, at that time, the
driver of the truck No.MH.04/CA.4847 parked the same in the
middle of the road near the center median, without keeping any
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signal or barricade. As a result, the Scorpio car dashed to the
said truck. Due to the impact, Scorpio car was damaged
extensively and all inmates of the car sustained injuries.
3) It is the case of the petitioners in MVC No.3354/2017 that
due to the impact, Balakrishna Reddy sustained fatal injuries
and he succumbed to the same at the spot. Thereafter, the post
mortem was performed and the body was handed over to the
petitioners. Petitioners spent Rs.1 lakh for performing last rites
and rituals.
4) Prior to the accident, Balakrishna Reddy was hale and
healthy and being a Civil Contractor, earning Rs.60,000/- per
month. Due to the rash or negligent act of parking of the truck
in the middle of the road, the accident occurred. The
respondent No.1 and 2, the owners of the truck and the
respondent No.3 being the Insurer of the same, are jointly and
severally liable to pay compensation to the petitioners and
hence, the petitioners, being the wife and children of the
deceased Balakrishna Reddy, have claimed compensation of
Rs.2 crores from the respondents.
5) It is the case of the petitioner Suresh B., in MVC
No.3355/2017 that, he was one of the inmates of the Scorpio Car
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and sustained injuries in the accident and he was shifted to Sri
Sai Baba Hospital, Shirdi, wherein he took first aid treatment and
thereafter, he was shifted to Ruby Hall Clinic. Medical
investigations reveled that he has sustained ribs fracture,
mandible fracture, injury to head and other parts of the body
and therefore, he has been treated as an inpatient from
04.09.2016 to 11.09.2016 and has undergone surgery. On
07.06.2019 and for further treatment, he was referred to
Prashanth Hospital, BSK Ist Stage, Bengaluru wherein, he has
taken treatment as an inpatient from 12.09.2016 to 21.09.2016.
Even after discharge, he has taken treatment as an outpatient
and spent morethan Rs.1 lakh towards medicines, conveyance
and nourishment charges. Fractures are not united. He is
getting unbearable pain often. He is completely bedreidden.
6) Prior to the accident, he was hale and healthy and having
completed BBM and Diploma in animation, was searching for
job. Due to the injuries sustained in the accident, he cannot do
any work and has suffered permanent disability. Therefore, he
has claimed total compensation of Rs.10 lakhs from the
respondents No.1 to 3, ie., respondent No.1 and 2 owners and
respondent No.3 insurer of the lorry.
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7) It is the case of the petitioner smt. Rajeswari B., in
MVC No.3356/2017 that, she was one of the inmates of the
Scorpio Car and sustained injuries in the accident and she was
shifted to Ruby Hall Clinic and medical investigation revealed
that she sustained facio maxillary injuries and linear displaced
fracture of right 2nd and 6th ribs and other injuries she has been
treated as an inpatient from 04.09.2016 to 11.09.20176 On
07.06.2016, for further treatment, she was referred to Prashanth
Hospital, BSK Ist Stage, Bengaluru wherein, he has taken
treatment as an inpatient from 12.09.2016 to 25.09.2016. Even
after discharge, she has taken treatment as an outpatient and
spent morethan Rs.1 lakh towards medicines, conveyance and
nourishment charges. Due to the injuries, she is completely bed
ridden.
8) Prior to the accident, she was hale and healthy and
being a house wife. Due to the injuries sustained in the
accident, she cannot do any work and has suffered permanent
disability. Therefore, she has claimed total compensation of Rs.8
lakhs from the respondents ie., owners and insurer of the lorry.
9) It is the case of the petitioner Mohan P., in MVC
No.3357/2017 that in the accident, he sustained injuries and was
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shifted to Sai Baba Hospital, Shirdi. After first aid, he was shifted
to Ruby Hall Clinic and has been treated as an inpatient from
04.09.2016 to 05.09.2016. He has sustained cut lacerated
wound with right frontal bone fracture, injury to head and other
grievous injuries. He has taken follow up treatment at Prashanth
Hospital, BSK Ist Stage, Bengaluru. He spent Rs.1 lakh for his
treatment, conveyance, nourishment and other expenses.
10) Prior to the accident, he was hale and healthy and
working as an Auditor and earning Rs.2 lakhs per month. Due to
the injuries sustained in the accident, he is unable to do his
regular work and hence, he has claimed a total compensation of
Rs.10 lakhs from the respondents.
11) It is the case of the petitioner in MVC No.3358/2017 -
Jyothiwar B., that in the accident, he sustained injuries and
immediately he was shifted to Sai Baba Hospital, Shirdi and after
first aid, he was shifted to Prashanth Hospital, BSK Ist Stage,
Bengaluru wherein he took treatment as an inpatient from
06.09.2016 to 17.09.2016. Medical investigations revealed that
he has sustained fracture of shaft femur, cut lacerated wound
over right hand and other grievous injuries. He spent morethan
Rs.1 lakh towards his medical expenses, conveyance and
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nourishment.
12) Prior to the accident, he was hale and healthy and he
is a software engineer earning Rs.6 lakhs per annum. Due to the
injuries sustained in the accident, he is unable to attend to his
work. Therefore, he claimed a total compensation of Rs.12 lakhs
from the respondents.
13) Initially, all these petitions were filed against the
respondent No.1. After filing of statement of objections by the
respondent No.1, other respondents were impleaded.
14) In brief the statement of objections raised by the
respondent No.1 are as under:
Averments in the petition are denied by stating that the
respondent No.1 has no knowledge of those facts. It is
specifically contended that the first respondent was the owner of
the truck. But, she sold the same to one Mohan Vijaykumar
Patharkar, S/o.Vijaykumar on 11.03.2016 and delivered the said
vehicle to him. At the time of accident, the vehicle was in the
custody of said Mohan Vijaykuar Patharkar. He himself has
appeared before the court. Therefore, he is a necessary party to
the proceedings as Mohan Vijaykumar was in possession of the
vehicle as on the date of accident, his presence is necessary.
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Therefore, petitions are bad for non joinder of necessary party
and misjoindar of parties and hence prayed to dismiss the
petitions.
15) After filling of this statement of objections by the
respondent No.1, respondent No.2 ie., Mohan Vijaykumar
Patharkar was impleaded as respondent No.2 and he appeared
through his advocate and filed his statement of objections as
follows:-
Entire averments of the petitions are denied in toto. It is
specifically contended that the lorry No.MH.04/CA.4847 is still
standing in the name of the respondent No.1 ie., Ajith Kaur
Gurubajan Singh Narang. She sold the same in favour of
respondent No.2 through an Agreement dated 15.02.2017 based
on the Vehicle Purchase Agreement dated 11.03.2016. Eversince
from the date of delivery of the said vehilce, it is in the custody
of respondent No.2 ie., Mohan Vijaykumar Pattarkar. Prior to the
alleged accident, the vehicle was in the custody of respondent
No.2. He applied for renewal of Insurance Policy of the vehicle.
Insurance Authority of the United India Insurance Co., Ltd., has
inspected the vehicle and renewed the Insurance Policy from
02.09.2016 to 01.09.2017 by collecting premium in a sum of
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Rs.17,901/- through DD bearing No.471400, dated 02.09.2016
drawn on Axis Bank, Ahmed Nagar Branch, Maharastra. The
said Insurance Company has issued an Acknowledgement dated
02.09.2016. Therefore, the petition filed against the respondent
No.1 and 2 is not maintainable as the Insurance Company is
liable to indemnify the liability of the respondent No.1 and 2.
Petition filed by the petitioners is bad for non-joinder and mis-
joinder of parties and prayed to dismiss the petitions.
16) Subsequently, the respondent No.3 - United Indian
Insurance Co., Ltd., is impleaded as respondent No.3 and the
respondent No.3 after having appeared through its advocate,
has filed statement of objections as under:-
The petitions are bad for non joiner of necessary parties
as the owner/insurer of the Scorpio of the car involved in the
alleged accident are not made as parties to the present
proceedings. The entire averemtns in the petition are denied.
The 3rd respondent denied issuance of insurance policy in favour
of the first respondent in respect of Truck bearing
No.MH.04/CA.4847. Without prejudice to that specific
contention, further objections are taken that the truck bearing
No.MH.04.CA/4847 has not caused the accident. It is created by
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the petitioners and first respondent in collusion with the Police
and a false case is lodged against the respondents to get
compensation. Due to the negligent act of driving on the part of
the driver of the Scorpio Car, the accident occurred. The Scorpio
Car dashed to the truck. The said fact is suppressed by the
petitioners.
17) There is no compliance of mandatory requirements of
Section 134(c) of the MV Act by the owner of the vehicle. The
Police have not complied with the requirements of Section
158(6) of the MV Act.
18) The petitioners are required to prove the involvement
of the truck as the vehicle is not involved in the accident. There
is no question of liability of the respondent No.3. Liability, if any,
is subject to the terms and conditions of the policy. If the driver
of the truck had no valid and effective driving licence, then the
respondent No.1 is not liable to pay any compensation.
19) The averments in the petition with reference to age,
avocation and income of the petitioners and the deceased are
denied in respect of all the cases. Compensation claimed by the
petitioners in all the case is exorbitant and prayed to dismiss the
petitions.
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20) In MVC No.3354/2017, Owners and Insurer of the
Truck No.MH.04/CA.4847 are arrayed as respondents No.1 to 3.
21) In MVC No.3355/2017, 3357/2017 and 3358/2017, the
owners and insurer of the truck are arrayed as respondent No.1
to 3, while the legal heir of the owner and insurer of the Scorpio
Car No.KA.41/N.1818 are arrayed as repsondent No.4. and 5.
22) In MVC No.3356/2017, the Owners and Insurer of the
Truck No.MH.04/CA.4847 are arrayed as respondents No.1 to 3
and the legal heir of the deceased owner of the Scorpio
No.KA.41/N.1818 is arrayed as respondent No.4.
23) One Rajeshwari, W/o.Late Balakrishna Reddy is
impleaded as respondent No.4 and Oriental Insurance Co., Ltd.,
is impleaded as respondent No.5 and they have appeared
through their respective advocates.
24) In the above three cases, ie., MVC No.3355/2017,
3357/2017 and 3358/2017, the respondent No.4 and 5 have
taken similar contentions.
25) Contentions taken by the respondent No.4 in its
statement of objections are as under:-
The respondent No.4 was travelling in the Scorpio Car
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No.KA.41/N.1818 on 04.09.2016, along with her husband and
two sons as well as relative Mohan P, when the accident
occurred. Without observing the traffic norms, the driver of the
lorry No.MH.04/CA.4847 parked the vehicle in the middle of the
road. Due to that, the accident occurred. In the accident, the
husband of the respondent No.4 has expired. Her two sons and
relative Mohan P., have sustained grievous injuries. The
respondent No.4 as well as her sons and relative P.Mohan are
entitled for compensation claimed by them in their respective
petitions. 5Th respondent is also liable to pay compensation
amount.
26) In brief, the contentions taken by the respondent
No.5 are as under:-
Petitions are not maintainable. Claim of the petitioners are
mis-constructed and bad in law. In all the petitions, they have
not disclosed the cause of action against the respondent No.5.
On that ground alone, the petitions are liabe to be rejected
against the respondent No.5. Jurisdictional Police have filed
charge sheet against the driver of the truck No.MH.04/CA.4847.
The respondent No.1 is the registered owner while the
respondent No.2 being the subsequent purchaser and the
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respondent No.3 being the insurer of the truck are liable to pay
compensation.
27) At the instance of respondent No.3, on filing
application under Order I Rule 10 of CPC, legal heirs of the
deceased Balakrishna Reddy, who were owners of Scorpio Car
were impleaded in MVC No.3354/2017. Since the vehicle was
being driving by Suresh B., and the owner of the Scorpio Car was
also an inmate of the car, the petitioner in MVC No.3355/2017
being the son of the deceased and petitioner in MVC
No.3356/2017 being the wife of the deceased and petitioners in
MVC No.3354/2017 claiming compensation on the death of
Balakrishna Reddy, being the legal heir, cannot claim any
compensation against the respondent No.5. Without impleading
the legal heirs of Balakrishna Reddy, who were the RC owners of
the Scorpio Car, the respondent No.5 is not liable to pay
compensation.
28) Entire averments in all the petitions with reference to
age, avocation and income, injuries sustained, amount spent for
treatment are denied in toto. It is specifically contended that
Scorpio Car was being driven by the son of the deceased and
there is no negligent act on the part of the driver of the Scorpio
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Car. The accident occurred only on account of the carelessness
on the part of the driver of the truck, which was stationed very
near to the center of the road median as well as in the middle of
the road without taking at safety measures. Therefore, the 5 th
respondent is not liable to pay any compensation either to the
legal heirs of the deceased or to the injured persons.
Compensation claimed in all the petitions is exorbitant and
prayed to dismiss the petitions.
29) From the above pleadings of the parties, in all the 5
petitions, following Issues and Additional Issues have been
framed:-
MVC No.3354/2017
1) Whether the petitioners prove that the deceased
succumbed to injuries in a Motor Vehicle Accident that
occurred on 04.09.2016 at about 09.30 to 09.33 am., in
front of Image Graphic Shop, Rahat Village,
Ahmadnagar District, Maharastra State within the
jurisdiction of Rahata Police Station on account of rash
and negligent driving of the Truck bearing registration
No.MH.04/CA.4847 by its drive?
2) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
3) What order?
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MVC 3355/2017
1) Whether the petitioners prove that the deceased
succumbed to injuries in a Motor Vehicle Accident that
occurred on 04.09.2016 at about 09.30 to 09.33 am., in
front of Image Graphic Shop, Rahat Village,
Ahmadnagar District, Maharastra State within the
jurisdiction of Rahata Police Station on account of rash
and negligent driving of the Truck bearing registration
No.MH.04/CA.4847 by its drive?
2) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
3) What order?
Addl.Issue
1) Whether the petition is bad for non joinder of other
legal heirs of deceased Balakrishna Reddy as
necesssary parties?
MVC 3356/2017
1) Whether the petitioners prove that the deceased
succumbed to injuries in a Motor Vehicle Accident that
occurred on 04.09.2016 at about 09.30 to 09.33 am., in
front of Image Graphic Shop, Rahat Village,
Ahmadnagar District, Maharastra State within the
jurisdiction of Rahata Police Station on account of rash
and negligent driving of the Truck bearing registration
No.MH.04/CA.4847 by its drive?
2) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
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3) What order?
Addl.Issue
1) Whether the petition is bad for non joinder of other
legal heirs of deceased Balakrishna Reddy as
necesssary parties?
MVC 3357/2017
1) Whether the petitioners prove that the deceased
succumbed to injuries in a Motor Vehicle Accident that
occurred on 04.09.2016 at about 09.30 to 09.33 am., in
front of Image Graphic Shop, Rahat Village,
Ahmadnagar District, Maharastra State within the
jurisdiction of Rahata Police Station on account of rash
and negligent driving of the Truck bearing registration
No.MH.04/CA.4847 by its drive?
2) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
3) What order?
MVC 3358/2017
1) Whether the petitioners prove that the deceased
succumbed to injuries in a Motor Vehicle Accident that
occurred on 04.09.2016 at about 09.30 to 09.33 am., in
front of Image Graphic Shop, Rahat Village,
Ahmadnagar District, Maharastra State within the
jurisdiction of Rahata Police Station on account of rash
and negligent driving of the Truck bearing registration
No.MH.04/CA.4847 by its drive?
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2) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
3) What order?
Addl.Issue
1) Whether the petition is bad for non joinder of other
legal heirs of deceased Balakrishna Reddy as
necesssary parties?
30) As per the Order passed by this Tribunal on
06.10.2018, MVC No.3355/2017 to 3358/2018 were clubbed with
MVC No.3354/2017 and the parties have adduced common
evidence in MVC No.3354/2017.
31) Petitioners in 4 petitions are examined as PW 1 to 4
and 2 documents are examined as PW 5 and 6 and the
petitioners got marked in all 52 documents as Ex.P.1 to P.52.
32) In support of the respondents case, in all 4 witnesses
are examined as RW 1 to 4 and they got marked in all 14
documents as Ex.R.1 to R.14.
33) By going through the issues framed in all these cases,
it is clear that Issue No.1 is framed mentioning that on account
of rash or negligent act of driving of truck bearing registration
No.MH.04/CA.4847 by its driver, the accident occurred. But, in
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all the case, it is the case of the petitioners and respondents
that at the time of accident, truck No.MH.04/CA.4847 was
parked on the road ie., highway. In the statement of objections
filed by the respondent No.1 to 3, they have taken the specific
contention that due to the negligent act of driving on the part of
the driver of the Scorpio Car, the accident occurred. On that
point, Issue is not framed. Therefore, recasting of all Issues in
all the cases is necessary. By exercising the powers vested
under Order XIV Rule 5 CPC, during the course of judgment,
Issues are re-casted as under:-
MVC No.3354/2017 - Recasted Issues
1) Whether the petitioners prove that on 04.09.2016, at
about 09.30 am., in front of Image Graphic Shop, Rahat
Village, Ahmednagar District, due to the negligent
parking of truck No.MH.04/CA.4847 by its driver on the
high way on Bengaluru Shirdi Road, Scorpio Car
No.KA.41/N.1818 dashed to it and the deceased
Balakrishna Reddy succumbed to the injuries?
2) Whether the respondent No.1 to 3 prove that due to
the negligent act of driving on the part of the driver of
the Scorpio Car No.KA.41/N.1818, the accident
occurred?
3) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
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4) What order?
MVC No.3355/2017 - Recasted Issues
1) Whether the petitioner proves that on 04.09.2016, at
about 09.30 am., while he was driving the Scorpio Car
No.KA.41/N.1818 in front of Image Graphic Shop, Rahat
Village, Ahmednagar District, due to the negligent parking
of truck No.MH.04/CA.4847 by its driver. Scorpio Car
No.KA.41/N.1818 driven by him dashed to it and in the
accident, he sustained injuries?
2) Whether the respondent No.1 to 3 prove that due to the
negligent act of driving of the Scorpio Car No.KA.41/N.1818
on the part of the petitioner, the accident occurred?
3) Whether the petitioners are entitled for compensation? If
so, how much and from whom?
4) What order?
MVC No.3356/2017 to 3358/2017
1) Whether the petitioner proves that on 04.09.2016, at
about 09.30 am., in front of Image Graphic Shop, Rahat
Village, Ahmednagar District, due to the negligent
parking of truck No.MH.04/CA.4847 by its driver on the
high way on Bengaluru Shirdi Road, Scorpio Car
No.KA.41/N.1818 dashed to it and in the accident, he
sustained injuries?
2) Whether the respondent No.1 to 3 prove that due to
the negligent act of driving on the part of the driver of
the Scorpio Car No.KA.41/N.1818, the accident
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occurred?
3) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
4) What order?
34) From going through the evidence adduced by parties,
it is clear that by knowing the facts of each case, they have
adduced evidence and also they have cross-examined the
witnesses with reference to the negligent act on the part of the
driver of the truck in parking the lorry on the highway as well as
the driver of the Scorpio. Therefore, there is no need to provide
further opportunity to either of the parties to adduce additional
evidence, if any, on the re-casted Issues.
35) Heard arguments.
36) For the reasons stated in the subsequent paragraphs,
I answer the above Issues, in common, as under:-
Issue No.1 - Partly in the affirmative
Issue No.2 - Partly in the affirmative
Issue No.3 - Accordingly
Issue No.4 - As per final order, for the following:-
REASONS
37) Recasted Issue No.1 and 2 in all the cases:- It is
the case of the petitioners in all the petitions that due to rash or
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negligent act of parking of the truck bearing No.MH.04/CA.4847
in the middle of the road, the accident occurred. The driver of
the truck by keeping open the back plank (door) of the truck,
parked the vehicle in the road. Therefore, the Scorpio car
dashed to the parked truck.
38) To substantiate the negligent act on the part of the
truck driver in parking the truck in the middle of the road, the
petitioners relied on their own evidence, examined as PW 1 to 4
as they are the inmates of the Scorpio Car and they have also
relied on the Police records.
39) Ex.P.1 is the Crime Details Form with its Translation at
Ex.P.1(a). Ex.P.2 is the Charge Sheet with its Translation at
Ex.P.2(a). Ex.P.25 is the FIR, with its translation at Ex.P.25(a).
Ex.P.26 is the Complaint with its translation at Ex.P.26(a).
40) From going through Ex.P.25 and Ex.P.26 ie., the FIR
and Complaint, it is clear that when PW 4 was admitted in
Saibaba Hospital, Sirdi, gave his statement to the Police and on
the basis of his statement, as per Ex.P.25, case is registered for
the offence punishable under Section 304-A, 279, 337 and 338
IPC at Ahmednagar Police Station, Rahat on 04.09.2016 against
the driver of the truck bearing No.MH.04/CA.4847 by name
25
Mohan Shankar Bise. From Ex.P.25, it is clear that HC 225 after
recording the statement in the hospital, sent the same to the
Police Station and the case is registered.
41) As per the complaint, it is clear that the complainant
along with his family members ie., father, mother, brother and
two cousins ie., Harsha Reddy and Mohan Reddy, were on family
trip from Bengaluru. On 03.09.2016, they left Bengaluru at
05.00 pm., in the Scorpio Car owned by father of the
complainant ie., Balakrishna Reddy. Complainant's brother
Suresh Reddy was driving the car. Next to him, Harsha Reddy
was sitting. Suresh Reddy, who was driving the Scorpio Car, was
using Google map in order to navigate. Others were seated in
the backseat and second backseat. At about 09.30 am., when
their vehicle was proceeding in front of Image Graphic Shop,
Rahat Village, Ahmednagar District, goods truck was stopped
and the Scorpio car dashed to it. In the accident, his father and
one of his cousin brother Harsha Reddy succumed to the
injuries. Rest of the inmates including the complainant
sustained grievous injuries.
42) As per Ex.P.1 Crime Details Form, Spot Panchanama
was conducted. In the Spot Panchanama, it is clearly mentioned
26
that in front of Image Graphic Shop, truck bearing
No.MH.04/CA.4847 was parked and its back plank (door) was
kept open. The Scorpio Car came from backside of the truck and
dashed to the truck, which was standing on the road. In Ex.P.1,
rough sketch was drawn at the time of conducting Spot
Panchanama. On completion of the investigation, charge sheet
as per Ex.P.2 filed against Mohan Shankar Bise for the offence
punishable under Section 304-A, 279, 337, 338 and 427 of IPC
and Section, 184, 134 (A) & (B) and 177 of the MV Act.
43) From going through the Sketch available in Ex.P.1, it is
noticed that the truck with back plank (door) open, was parked
entirely on the road.
44) During the course of cross-examination of PW 1 to 4,
the respondents have not disputed the nature of occurrence of
accident. They have disputed the fact that the deceased
Balakrishna Reddy was driving the vehicle, but not the brother of
complainant. The same was denied by PW 1 to 4 during their
cross-examination.
45) From the above said facts pleaded by the petitioners
in all the petitions and the Police records, it is an admitted fact
that throughout night, the petitioners and the deceased
27
travelled in Scorpio Car all along from Bengaluru till the spot. It
is the case of the petitioners that during night, from 12.30 am to
03.00 am, they have taken little break and then they
proceeded. The accident occurred at 09.30 am., and it is no
body's case that due to cloud or fog, one could not see the clear
picture of the road for a long distance. Even for a moment, it is
considered as truck was parked on the tar road itself, the driver
of the Scorpio Car could have noticed the parked vehicle at a
distance as the road is straight at the place of accident. The
charge sheet is filed against the truck driver only. From these
admitted facts that Scorpio Car dashed behind the truck and due
to the impact, two persons died at the spot, 5 other inmates of
the Scorpio Car sustained grievous injuries, it suggests that the
Scorpio Car was moving in high speed and the driver of the
Scorpio Car could not control it, after seeing the lorry parked on
the road.
46) On the contrary, during the course of cross-
examination of PW 2, he has admitted that at the time of
accident, sky was clear. It is also an admitted fact that the
accident occurred on highway. Therefore, the speed of the
vehicle is not criteria to determine the negligent act as in
28
highway, normally vehicles move in speed. Considering the
Police records and admitted facts referred above, it is clear that
there is negligent act on the part of the driver of the truck in
parking the truck on the national highway and there is some
amount of contributory negligence on the part of the driver of
the Scorpio Car. Considering the above said facts and
circumstances of the case, the negligence is apportioned at
80:20 respective, in respect of driver of the truck and the driver
of the Scorpio Car.
47) As I already stated above, the respondents have
disputed the fact that PW 2 was driving the Scorpio Car and
similar suggestion was made to PW 1 to 4 during the course of
their cross-examination and they have denied that suggestion.
48) During the course of cross-examination of PW 1,
question was asked by the advocate for the respondent No.2, as
to who was driving the Scorpio Car. For that, she answered that
at the beginning of the journey, her husband was driving the car
and after dinner, her elder son was driving and later. Later, after
stopping the car at about 12.30 am., to 3.00 am., they continued
their journey and at that time, her youngest son Suresh was
driving the car. At the time of accident, her youngest was
29
driving the car. He had driving licence to drive the car. For PW
1, it is suggested to her that while the lorry was going on the left
side of the road, her youngest son has dashed their vehicle
against the said lorry without observing the same and due to the
negligent act on the part of her son, the accident occurred and
in collusion with the Police, a false complaint was lodged against
the lorry driver. The said suggestion has been denied by her.
During further cross-examination of PW 1, it is not disputed that
Suresh was not driving the Scorpio Car at the time of accident.
But after production of Ex.P.42 - 2 IMV Reports, the learned
Advocate for the respondent No.3 has suggested to her during
her further cross-examination that at the time of accident, her
husband was driving the car and as he did not have driving
licence, therefore, a false story has been created that at the
time of accident, PW 2 was driving the Scorpio Car. The said
suggestion was denied by PW 1.
49) During the course of cross-examination of PW 2, it is
specifically suggested that as per the damage caused to the
Scorpio Car, the person who was driving the said vehilce, would
not have survived and hence, his father was driving the Scorpio
car at the time of accident. She denied the same.
30
50) On the contrary, for PW 4, it is suggested to him that
PW 2 was driving the Scorpio Car on the left lane and at the
place of accident, there is a curve and PW 2 tried to overtake
and in the process, came to the right side and and dashed to the
right portion of the truck and the said suggestion has been
denied by him. PW 4 has admitted that in none of the Police
papers, there is mention about the road at the place of accident
being curvaceous.
51) From going through Ex.P.42 - IMV Report, it is clear
that the rear portion of the truck was damaged and major front
portion and doors of both side of the Scorpion Car was damaged.
52) Only by seeing the damages to the vehicle as shown
in the IMV Report, it cannot be said that the deceased was
driving the vehicle, as all have sustained grievous injuries in the
accident. To disbelieve the evidence of PW 1 to 4 with reference
to the fact that PW 2 was driving the Scorpio Car at the time of
accident, denial suggestions are not sufficient. On the contrary,
in the hospital itself, PW 4 has given statement before the
Police. Therefore, it cannot said that there is manipulation of
facts.
53) From the oral evidence of PW 1 to 4 and Police
31
records, the petitioners have proved that due to the parking of
truck on the national highway and contributory negligence on
the part of the driver of the Scorpio Car ie., PW 2, the accident
occurred.
54) In this case, the respondents have not disputed the
fact of death of Balarkrishna Reddy, the husband of PW 1 and
father of PW 2 and 4 and sustaining of injuries by PW 1 to 4. To
substantiate the specific contention taken by the petitioners
regarding the death of Balakrishna Reddy and injuries sustained
by PWs 1 to 4 in the accident, they have produced medical
records.
55) From the medical records produced by the petitioners
ie., Ex.P.7 and P.8 - Discharge Summaries, Ex.P.9 - Medical Bills
and Ex.P.10 Prescriptions with reference to PW 1, Ex.P.11 -
Discharge Summary, Ex.P.13 - Medical Bills, Ex.P.14 -
Prescriptions with reference to PW 2, Ex.P.17 - Discharge
Summary, Ex.P.19 - Medical Bills and Ex.P.2- Prescriptions with
reference to PW 3 and Ex.P.21 - Discharge Summary, Ex.p.23 -
Medical Bills and Ex.P.24 - Prescriptions with reference to PW 4,
are sufficient to come to the conclusion that in the said accident,
PW 1 to 4 have sustained injuries. Hence, Recasted Issue No.1
32
and 2 in all the case are answered partly in the affirmative.
56) Recasted Issue No.3 in MVC No.3354/2017 :- - In
this case, the petitioners have claimed a total compensation of
Rs.2 crores in view of the death of Balakrishna Reddy in the
accident. Originally, this petition was filed by the petitioner No.1
only ie., the wife of the deceased Balakrishna Reddy. As in the
statement of objections, the respondents have taken contention
that the petition is not maintainable, without arraying the other
legal heirs of the deceased. Therefore, additional Issue was also
framed in this case. Thereafter, during the pendency of the
petition, sons of the deceased are impleaded as petitioner No.2
and 3. Therefore, now it cannot be said said the petition is bad
for non joinder of necessary parties.
57) PW 1, 2 and 4, in their chief examination affidavit,
have clearly stated that the deceased was the husband of
petitioner No.1 and father of petitioner No.2 and 3. At the time
of family trip to Shirdi, this accident happened. Statement made
by PW 1, 2 and 4 in their chief examination affidavit about the
relationship of the deceased with the petitioners, is not disputed.
In all Police records, relationship is reflected. Therefore, the
petitioners proved that petitioner No.1 is the wife and petitioner
33
No.2 and 3 are the children of deceased Balakrishna Reddy.
58) It is the case of the petitioners that the deceased
Balakrishna Reddy, being a Civil Contractor, was earning
Rs.60,000/- per month. To substantiate the same, the
petitioners relied on the oral evidence of PW 1 and Ex.P.5 and P.6
- IT Returns submitted by the deceased during the assessment
year 2013-14, and 2015-16 and TDS for the year 2014-15.
59) From going through the above said IT Returns of the
deceased, it is clear that at an undisputed period of time for 3
years prior to his death, the deceased has made self declaration
about his income. As per Ex.P.5, for the Assessment year 2013-
14, he has declared his gross income as Rs.5,12,444/-. As per
Ex.P.6, which is Form No.26AS, he has paid total tax of
R.30,440/- for the assessment year 2014-15. Ex.P.6 is the
acknowledgement for having filed IT Return for the assessment
year 2015-16. For that year, the deceased has declared his
gross income at Rs.5,54,619/- and he has paid self assessment
income tax of Rs.15,380/-. Considering Ex.P.5 and P.6 - IT
Returns, it is proved by the petitioners that the deceased was
earning by doing civil contract and he has made self declaration
of his income to the IT Department.
34
60) As the income of the deceased varied from year to
year, on average, the annual income of the deceased comes to
Rs.5,25,000/- and after deducting the income tax, which also
varied from year to year, the annual income of the deceased
including future prospects is taken as Rs.5,00,000/-.
61) As per Ex.P.28 - Aadhaar Card of the deceased, he
was born in the year 1968. The accident has occurred in the
year 2016. As such, the deceased was aged 48 years at the time
of the accident.
62) Petitioner No.2 in this case, is petitioner in MVC
No.3358/2017. He being an engineer at the time of accident,
working in IBM and earning. Therefore, he cannot be treated as
dependent member on the income of the deceased. Petitioner
No.1 being the wife and petitioner No.3 being the student at the
time of accident, therefore, petitioner No.1 and 3 are considered
as dependents and therefore, 1/3rd of the annual income of the
deceased has to be deducted towards the personal expenses of
the deceased, had he been alive. 1/3rd of Rs.5,00,000/- comes
to Rs.1,66,666/- and the balance 2/3rd comes to Rs.3,33,333/-.
63) As I already stated above, as the deceased was
aged 48 years, multiplier applicable to the case on hand is 13
35
and therefore, after multiplying the annual loss of dependency
of Rs.3,33,333/- by 13, the total loss of dependency comes to
Rs.43,33,329/-.
64) On the conventional heads as per the principle laid
down by the Hon'ble Apex Court in the decision reported in
2017 ACJ 2700 (SC) (National Insurance Company Limited
Vs Pranay Sethi and others), an amount of Rs.15,000/- is
awarded towards Funeral Expenses and Rs.15,000/- towards
Loss of Estate. Rs.40,000/- is awarded towards Loss of
Consortium to petitioner No.1. Further, the petitioners No.2
and 4 being the sons of the deceased, are entitled to Rs.40,000/-
each towards Parental Consortium. Thus, the total
compensation amount comes to Rs.49,16,658/-.
65) Therefore, the petitioners are entitled for
compensation as under:-
Sl. Head of Calculation Total
No Compensation
1 Annual Income 5,00,000.00
2 Deduction of 1/3rd 5,00,000.00
of income of the Minus 1/3rd
deceased towards (1,66,666/-)
personal expenses =
of the deceased 3,33,333.00
3 Annual Income 3,33,333.00 43,33,329.00
multiplied by 13 and
X 13 =
36
multiplier 43,33,329.00
4 Towards Loss of Estate 15,000.00
5 Towards Funeral 15,000.00
Expenses
6 Loss of Consortium to 40,000.00
petitioner No.1
7 Towards Parental 40,000.00 80,000.00
Consortium to each
Petitioner No.2 and 4
Total 44,83,329.00
66) The petitioners are entitled to Rs.44,83,329.00
together with interest at 6% p.a. from the date of petition till
realisation.
67) While answering Issue No.1 and 2, it is held that the
accident has occurred due to the contributory negligence of 80%
on the part of the driver of the truck and 20% on the part of the
driver of the Scorpio Car. From going through Ex.R.10 and the
evidence of RW 3, it is clear that the Scorpio Car involved in the
accident is insured with the respondent No.5 - Oriental
Insurance Co., Ltd. And it is a Package Policy.
68) During the course of cross-examination of RW 3, she
has clearly admitted it is a package policy. Therefore, risk of the
inmates of the car is covered. As on the date of the accident,
the deceased Balakrishna Reddy was the RC owner of the Car.
37
Therefore, the legal heirs of the owner are not entitled for 20%
compensation, as in view of my finding on Issue No.1 and 2,
negligence is apportioned at the ration of 80:20 in respect of
driver of lorry and Scorpio Car. Hence, petitioners are entitled to
a compensation of Rs.35,86,663.00, being 80% of the total
compensation amount from the respondent No.1 to 3, being, the
Owner and Insurer of the Truck No.MH.04/CA.4847.
69) The compensation amount is apportioned amongst
the petitioners at the ratio of 80:10:10. Hence, Issue No.3 is
answered accordingly.
70) Issue No.3 in MVC No.3355/2017:- In this case,
the petitioner Suresh P., has claimed a total compensation of
Rs.10 lakhs from the respondents on various heads.
71) In the decision reported in (2011) 1 SCC 343 ( Raj
Kumar Vs. Ajay Kumar and another) Division Bench of the
Hon'ble Apex Court has laid down on what grounds
compensation is required to be awarded in personal injury case.
In para 6 of the said judgment Their their Lordships have
demarcated the heads in which compensation is required to be
considered are reads as under:
38
6. The heads under which compensation is awarded in personal
injury cases are the following:
Pecuniary damages(Special damages)
(i)Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would
have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment
(b) Loss of future earnings on account of permanent disability.
(iii) future medical expenses
Non-pecuniary damages(General damages)
(iv) Damages for pain, suffering and trauma as a consequence
of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life(shortening of normal longevity)
72) From going through the above said decision, it is clear
that under the pecuniary damages expenses relating to the
treatment, hospitalisation, medicines, transportation, nourishing
food and miscellaneous expenditure are required to be
considered with. In the second head loss of earning and other
gains of the injured person is required to be considered. In the
background of principle laid down by their Lordships in the
above said decision, we can consider what amount the
petitioner is entitled for compensation.
39
73) It is the case of the petitioner that in the accident, he
sustained grievous injuries. In order to prove what are the
injuries sustained in the accident, the petitioner has relied on
Ex.P. 11 - Discharge Summary. In this case, the Wound
Certificate is not produced by the petitioner.
74) From going through the Discharge Summary Ex.P.11,
it is seen that under the head local examination, the doctor
noted Multiple abrasions over face, chin, chest, abdomen and
left elbow. Under the heading Imaging, it is noted that MRI
Brain findings reveals tiny areas of diffusion restriction in left
fronto subcortical white matter in body of right caudate nucleus
and splenium of corpus callosum which appears hypointense on
ADC map suggestive of acute axonal shear injuries. Under the
head course in the hospital, it is mentioned that patient required
ventilatory support post operatively was extubated on
10.09.2016, now patient is hemodynamically stable, maintains
saturation on room air and now patient is stable and is being
discharged on request.
75) The petitioner has also relied on the evidence of
PW 6, the doctor, who has deposed about the permanent
disability sustained by the petitioner on account of the injuries
40
sustained by him in the accident. In the chief examination
affidavit, PW 6, with reference to the present petitioner, has
stated that the petitioner was examined on 18.05.2019 and he
complained pain in abdomen, occasional indigestion, difficulty in
wide opening of mouth and difficulty in chewing hard food.
76) The petitioner has taken treatment as an inpatient
from 04.09.2016 to 11.09.2016 at Ruby Hall Clinic as per Ex.P.11
Discharge Summary. After discharge from that hospital, once
again he was admitted to Prashanth Hospital, Bengaluru and
taken treatment as an inpatient from 12.09.2016 to 21.09.2016.
77) Thus, considering the nature and gravity of the
injuries sustained by the petitioner in the accident and the
period of treatment, the petitioner is awarded compensation of
Rs.1,00,000/- towards Pain and Sufferings.
78) The petitioner has taken treatment as an inpatient
from 04.09.2016 to 21.09.2016, for a period of 17 days in the
above referred two hospitals. Therefore, a compensation of
Rs.17,000/- is awarded towards Food, Nourishment and
Attendant Charges.
79) It is the case of the petitioner that he spent huge
amount for his treatment. For that, he relied on Ex.P.13 -
41
Medical Bills. Under Ex.P.13, two sets of Medical Bills are
marked. In the first set, there are 44 bills at Sl.No.1 to 44. In
the second set of bills, there are 112 at Sl.No.1 to 112.
80) In Sl.No.2 of first set of Ex.P.13, there is a Final Bill
issued by Ruby Hall Clinic. Bills at Sl.No.1, 3, 4 to 8 are Interim
Bills, which are covered by Sl.No.2 of first set. Therefore, total
amount of Rs.3,29,839/- mentioned in Sl.No.2 of first set of
Ex.P.13 is taken into consideration. Sl.No.9 to 15 are the reports
of different departments with reference to petitioner while the
petitioner was taking treatment at Ruby Hall Clinic. Sl.No.16 to
44 of first set of Ex.P.13 are with reference to medicine purchase
bills. Medicine charges are not included in the Final Bill.
Therefore, the petitioner is entitled for the amount spent for
purchase of medicines. Sl.No.16 to 44 of first set of Ex.P.13
account for Rs.95,024/-.
81) In the second set of Ex.P.13, Sl.No.1 is the IP Bill for
Rs.1,36,000/- issued by Prashanth Hospital. From going through
the above said bills, it is clear that medicines provided during
the treatment as inpatient are included in the Final Bill.
Therefore, petitioner is not entitled for either lab charges for
having undergone tests or medicine purchase bills. Therefore,
42
bills at Sl.No.25 to 36, 62 and 96 which are bills pertaining to the
period when the petitioner was inpatient in Prashanth Hospital
are encluded. Excluding those bills, the total cost of medicines
comes to Rs.66,073/-. By deducting the same, the petitioner is
entitled for Rs.14,065/- + Rs.1,36,000/- being the Final Bill
Amount and the above referred Rs.3,29,839/- and Rs.95,024/-. In
all, the petitioner is entitled for total compensation of
Rs.5,74,928/- and by rounding off the same to nearest figure,
the petitioner is awarded Rs.5,74,930/- towards medical
expenses.
82) It is the case of the petitioner that due to the injuries
sustained in the accident, he is left with permanent disability. For
that, he relied on the evidence of PW 6. As I already stated
above, PW 6, has stated what are the physical complaints faced
by the petitioner. On his clinical examination on 18.05.2019, he
noted tenderness over the mandible body and condyler, full
mouth opening absent, trismus present, abdomen tenderness
and X ray showed united fracture mandible with implants and
PW 6 has assessed the percentage of disability at 10% of mid
face and 10% for partial removal of liver.
83) PW 6 has deposed before this court with reference to
43
other petitioners in MVC No.3356/2017, 3357/2017 and
3358/2017 also and common cross-examination was done to
him by the advocate for the respondent No.2 and 3. During the
course of cross-examination of PW 6, he has admitted that he
has not treated PW 1 to 4 personally. He has only examined
them. He verified the Discharge Summaries and assessed the
disability.
84) During the course of cross-examination of PW 6, it is
suggested to him that Ex.P.46 is created for the purpose of this
case and PW 2 has no disability of 10% to mid face and 10% for
partial removal of liver and the said suggestion has been denied
by him. PW 6 has admitted that the petitioner can walk, climb
stairs and also can run. There is a specific suggestion to PW 6
that the partial removal of liver of the petitioner will not come in
the way of his avocation. The said suggestion is denied by him.
85) Considering the physical discomfort being faced by
the petitioner as deposed by PW 6 with reference to the present
petitioner and the fact that PW 2 has completed his bachelor in
business management and diploma in animation, at the time of
accident, he was searching for job. PW 6 has not assessed the
functional disability. Therefore, considering the nature of
44
qualification of PW 2, it cannot be said that there is functional
disability to the petitioner. But in view of the fact that the
petitioner is unable to open his mouth to its full extent and he is
facing abdomen problems and also due to the damage to the
liver, it is necessary to award compensation on the head of loss
of amenities instead of loss of earning capacity. Considering the
nature of injury and physical difficulties that may have to be
faced by the petitioner in his remaining life span, a
compensation of Rs.1 lakh is awarded towards loss of amenities
in life.
86) PW 6 in his evidence has deposed that implants are
insitu with reference to surgery undergone by the petitioner.
Therefore, a compensation of Rs.25,000/- is awarded towards
future medical expenses.
87) From the medical records, it is clear that initially the
petitioner has taken treatment in Maharastra and thereafter, in
Bengaluru and has also followed the treatment on several
occasions. Therefore, the petitioner is awarded compensation of
Rs.5,000/- towards transportation charges.
88) The petitioner was not earning at the time of
accident. Therefore, there is no need to award compensation on
45
the head loss of earning during the period of treatment and rest
period.
Sl.No. Heads of Compensation Amount of
Compensation
1. Pain and Suffering 1,00,000.00
2. Food, Nourishment and Attendant 17,000.00
charges
3. Medical Expenses 5,74,930.00
4. Loss of amenities in life 1,00,000.00
5. Future medical expenses 25,000.00
6. Transportation Charges 5,000.00
Total 8,21,930.00
89) Thus, the petitioner in MVC No.3355/2017 is awarded
compensation of Rs.8,21,930.00 with interest 6% p.a.
90) As the petitioner has incurred huge medical
expenses, entire compensation amount together with accrued
interest is ordered to be released to the petitioner.
91) As the petitioner himself was driving the car at the
time of accident and while answering Issue No.1 and 2, it is held
that there is contributory negligence of 20% on the part of the
driver of the car and 80% on the part of the driver of the truck,
the petitioner in this case, cannot claim 20% of compensation,
owing to the reason that he has contributed to the extent of
46
20% and after deducting 20%, the petitioner is entitled to claim
Rs.6,57,544/- from the respondent No.1 to 3. Issue No.3 is
answered accordingly.
92) Issue No.3 in MVC No.3356/2017:- The petitioner
in this case ie., Rajeshwari has claimed total compensation of
Rs.8,00,000/- on various heads.
93) To prove what are the injuries sustained by the
petitioner in the accident, the petitioner has not produced her
Wound Certificate. However, the petitioner has relied on Ex.P.7
and P.8 Discharge Summaries.
94) From going through the Discharge Summaries at
Ex.P.7 and P.8, it is clear that the petitioner has taken treatment
as an inpatient in Ruby Clinic Hall from 04.09.2016 to
11.09.2016 and thereafter, she was shifted to Prashanth
Hospital, Bengaluru, wherein she has taken treatment as an
inpatient from 12.09.2016 to 29.09.2016.
95) As per the Discharge Summary, the petitioner has
sustained Facio maxillary injury, linear displaced fracture of right
2nd and 6th ribs.
96) From Ruby Hall Clinic, Maharastra, the petitioner was
discharged at request and in Prashanth Hospital, Bengaluru, she
47
was readmitted on 12.09.2016. In Ex.P.8, diagnosis under the
head diagnosis, it is mentioned as Facio maxillary injury, 2 nd to
5th ribs fracture right side, dorsal spine fracture D6-D8.
97) From going through the course in the hospital, it is
clear that the petitioner has been treated conservatively as
there was no compression on cord root.
98) Considering all these apsects, the petitioner is
awarded compensation of Rs.50,000/- under the head pain and
suffering.
99) From Ex.P.7 and P.8, Discharge Summaries, it is clear
that the petitioner has taken treatment as an inpatient from
04.09.2016 to 25.09.2016, in the above two hospitals, in all for a
period of 22 days. Therefore, compensation of Rs.22,000/- is
awarded to the petitioner as compensation towards Food,
Nourishment and Attendant Charges.
100) It is the case of the petitioner that she incurred huge
medical expenses. For that she relied on Ex.P. 9 - 2 Sets of
Medical Bills. First Set of Bills at Sl.No.1 to 33 are with
reference to treatment in Ruby Hall Clinic. Second set of bills at
Sl.No.1 to 54 are with reference to treatment taken at Prashanth
Hospital.
48
101) From going through the medical bills produced by the
petitioner, it is clear that Sl.No.1 of First Set of Ex.P.9 is the Final
Bill issued by Ruby Hall Clinic. Sl.No.2 to 4 are details of amount
arrived at as per Sl.No.1 Final Bill. Sl.No.7 is the interim bill.
Sl.No.8 to 10 are advanced payment receipts. Therefore, Bills at
Sl.No.2 to 10 are covered in Final Bill.
102) From going through the details provided in Sl.No.2 of
Ex.P.9, it is clear that amount mentioned in Sl.No.11 to 33 are
not covered in Sl.No.2 Final Bill.
103) In the Second Set of Bill of Ex.P.9, Sl.No.1 and 2 is
Final Bill for a total amount of Rs.77,362/-. Sl.No.3 to 13 are the
Lab Reports of different departments. Other medical bills are
either for having paid the charges of Ultra Sound Scanning and X
ray on different dates after her discharge. Therefore, the
petitioner is entitled for the amount shown in these bills.
104) On computation of the amount shown in Sl.No.1 of
Set One and Sl.No.1 and 2 of Set Two of Ex.P.9, after excluding
the amount covered in the Main Bills, the petitioner is held
entitled to a compenation of Rs.4,41,950/- towards medical
expenses and accordingly, the petitioner is awarded
compensation of Rs.4,41,950/- towards medical expenses.
49
105) It is the case of the petitioner that she sustained
permanent disability due to the injuries sustained in the
accident. For that, she relied on the evidence of PW 6. In his
chief examination affidavit, PW 6, with reference to the present
petitioner, PW 6 has deposed that petitioner complained pain
and swelling on face and right chest, difficulty in coughing and
sleeping on right side, difficulty in bending forward and unable
to lift weight. On examination, he noticed that there is
tenderness over the face, right maxilla, right chest and dorsal
spine and chest expansion painful. Spine flexion is painful. He
has assessed the disability of 3% on mid face, 5% to chest and
10% to spine fracture and total disability of 18%.
106) Considering the nature of difficulties being faced by
the petitioner and as the functional disability is not assessed by
the doctor and the above referred answer given by PW 6 during
the course of his cross-examination, it is proper to award
compensation on the head of loss of amenities in life instead of
loss of earning capacity. Therefore, the petitioner is awarded
compensation of Rs.50,000/- towards loss of amenities in life.
107) At the first instance, the petitioner was treated at
Ruby Hall Clinic, Maharastra and thereafter, she was shifted to
50
Prashanth Hospital, Bengaluru. In both the hospitals, she was
treated as an inpatient. Considering the same, the petitioner is
awarded compensation of Rs.5,000/- towards transportation
charges.
108) Thus, the petitioner is awarded compensation as
under:-
Sl.No Heads of Compensation Amount of
Compensation
1. Pain and suffering 50,000.00
2. Food, Nourishment and 22,000.00
Attendant charges
3. Medical Expenses 4,41,950.00
4. Loss of amenities in life 50,000.00
5. Transportation charges 5,000.00
Total 5,68,950.00
109) Thus, the petitioner in MVC No.3356/2017 is awarded
compensation of Rs.5,68,950/- together with interest at 6% p.a.
from the date of petition till realisation.
110) As the petitioner has incurred substantial amount for
her treatment, entire compensation amount with accrued
interest is ordered to be released to her.
111) While answering Issue No.1 and 2, it is held that the
accident has occurred on acocunt of contributory negligence of
80% on the part of driver of truck and 20% on the part of driver
51
of scorpio car. In this case, as the owner and insurer of the car
are not made as parties after death of R.C.Owner of Scorpio Car.,
she steps into to his shoes. Hence, the petitioner is entitled to
claim 80% of compensation from the owner and insurer of the
truck. Issue No.3 is answered accordingly.
112) The petitioner in this case, while filing amended
petition, has wrongly shown her name. Hence, the petitioner is
directed to file amended petition, properly showing her name.
113) Issue No.3 in 3357/2017:- In this case, the
petitioner Mohan P., has claimed compensation of Rs.10 lakhs on
various heads.
114) To prove what are the injuries sustained by him in the
accident, although the petitioner has not produced the wound
certificate, however, he has produced the Discharge Summary
as per Ex.P.16 and P.17.
115) As per Ex.P.16 - Discharge Summary, the petitioner
has taken treatment as an inpatient immediately after the
accident at Sri Saibaba Hospital, Shirdi, for a period of 2 days ie.,
on 04.09.2016 and 05.09.2016. After discharge from the said
hospital, he came to Bengaluru and got admitted to Prashanth
Hospital, Bengaluru on 06.09.2016 and discharged on
15.09.2016. As per Ex.P.17, petitioner complained pain over
52
face and left knee.
116) Conclusion after local examination as mentioned in
Page 2 of Ex.P.17 is that the petitioner has sustained fracture of
frontal bone, supraorbital bone with zygomatic bone on right
side, nasal bone on right side, infra orbital bone fracture on left
side.
117) In Page No.3, course in the hospital is mentioned as
on 11.09.2016, petitioner underwent ORIF of ZMC + frontal bone
fracture. Opinion of neurosurgeon, neurophysician, dental,
opthalmic opinion was taken and accordingly, the petitioner was
treated.
118) Thus, considering the nature of injuries and the
period of treatment, petitioner is awarded compensation of
Rs.50,000/- towards Pain and Sufferings.
119) As per Ex.P.16 and 17, petitioner has taken treatment
as an inpatient from 04.09.2016 to 15.09.2016 in the above
referred two hospitals, totally for a period of 12 days. Therefore,
a compensation of Rs.12,000/- is awarded as compensation
towards Food, Nourishment and Attendant charges.
120) It is the case of the petitioner that he has spent huge
amount for his treatment. For that, the petitioner has relied on
Ex.P.19 - Series of Medical Bills. Sl.No.1 of Ex.P.19 is the
53
Inpatient Bill issued by Prashanth Hospital at the time of
discharge for a total amount of Rs.1,07,100/-. Sl.No.2 is the
details of that bill. Sl.No.5 to 9 are the lab reports. Other bills in
Ex.P.19 are with reference to purchase of medicines.
121) Under Sl.No.2 of Ex.P.19, the hospital authorities have
not collected the pharmacy charges or amount towards
consumables. Therefore, the petitioner is entitled for
compensation towards bills at Sl.No.3, 9 to 41, 42 and 45 of
Ex.P.19, total of which comes to Rs.24,618/- and Rs.8,300/-
respectively. Under Sl.No.1 and 2, petitioner is entitled for
medical bill of Rs.1,07,100/-. Therefore, the total of all these
medical bills comes to Rs.1,40,018/-, which is rounded off to
Rs.1,40,020/- and accordingly, the petitioner is awarded
compensation of Rs.1,40,020/- under the head medical
expenses.
122) PW 6 in his chief examination affidavit has deposed
that implants are insitu and the petitioner is required to undergo
another surgery. Therefore, the petitioner is awarded
compensation of Rs.25,000/- under the head future medical
expenses, which shall not carry any interest.
123) It is the case of the petitioner that he sustained
permanent disability due to the injuries sustained in the
54
accident. For that, once again, the petitioner has relied on the
evidence of PW 6. PW 6 in his chief examination affidavit, with
reference to the present petitioner, has deposed that the
petitioner complained pain over right rib, face, difficulty in
chewing hard substance, pain sleeping on right side. On
examination, he noticed tenderness present over right
zygomatic frontal bone, chewing is painful, presence of
operative scar and he has assessed the percentage of disability
at 7%.
124) Considering the nature of injuries sustained by the
petitioner and since there is no functional disability, therefore, it
is proper to award compensation on the head loss of amenities
in life, instead of loss of earning capacity as during rest of his
life, the petitioner has to live with the infirmities, owing to the
fact that the petitioner is having problem in chewing hard
substance. Therefore, the petitioner is awarded compensation
of Rs.50,000/- towards loss of amenities in life.
125) It is the case of the petitioner that prior to the
accident, he had completed B.Com., and working as an auditor
and earning a sum of Rs.2,00,000/- per month.
126) During the course of his cross-examination, PW 3 has
55
clearly admitted that in the chief examination affidavit, there is
a mistake in mentioning the monthly income as Rs.2,00,000/-
instead of Rs.20,000/- per month. Except the oral evidence of
PW 3, nothing is on record to prove his actual income.
Considering the year of accident and the nature of injuries
sustained by the petitioner in the accident, the petitioner may
not have been in a position to attend to his work for a minimum
period of 1 ½ months. Hence, having assessed the income of
the petitioner notionally at Rs.10,000/- per month, the petitioner
is awarded compensation of Rs.15,000/- towards loss of income
during treatment and rest period, at the rate of Rs.10,000/- per
month.
127) At the first instance, the petitioner was treated at Sri
Saibaba Hospital, Shirdi, Maharastra and thereafter, he was
shifted to Prashanth Hospital, Bengaluru. In both the hospitals,
he was treated as an inpatient. Considering the same, the
petitioner is awarded compensation of Rs.5,000/- towards
transportation charges.
128) Thus, the petitioner is awarded compensation as
under:-
Sl.No Heads of Compensation Amount of
Compensation
1. Pain and suffering 50,000.00
56
2. Food, Nourishment and 12,000.00
Attendant charges
3. Medical Expenses 1,40,020.00
4. Loss of income during 15,000.00
treatment and rest period
5. Future medical expenses 25,000.00
6. Loss of amenities in life 50,000.00
7. Transportation charges 5,000.00
Total 2,97,020.00
129) Thus, the petitioner in MVC No.3357/2017 is
awarded compensation of Rs.2,97,020/- together with interest at
6% p.a. from the date of petition till realisation.
130) As the petitioner has incurred substantial
amount for her treatment, entire compensation amount with
accrued interest is ordered to be released to him.
131) While answering issue No.1 and 2, it is held that the
accident has occurred due to the contributory negligence of 80%
on the part of the driver of the truck and 20% on the part of the
driver of scorpio car. Petitioner is entitled to claim compensation
from the respondents according to ratio of negligence
apportioned against them. Issue No.3 is answered accordingly.
132) Issue No.3 in 3358/2017:- In this case, the
petitioner Jyothishwar B., has claimed compensation of Rs.12
lakhs on various heads.
57
133) To prove what are the injuries sustained by him in the
accident, although the petitioner has not produced the wound
certificate, however, he has produced the Discharge Summary
as per Ex.P.20 and P.21.
134) As per Ex.P.21 - Discharge Summary, the petitioner
has taken treatment as an from 06.09.2016 and 17.09.2016 at
Prashanth Hospital, Bengaluru. As per Ex.P.25 FIR, while the
present petitioner was taking treatment at Ruby Clinic Hall on
04.09.2016, HC 225 recorded the statement of the present
petitioner in the hospital and in the chief examination affidavit,
PW 4 has stated that immediately after the accident, he was
shifted to Saibaba Hospital, Shirdi and while undergoing
treatment, Police recorded his statement. After discharge from
Sri Saibaba Hospital, Shirdi on 06.09.2016, he was readmitted to
Prashanth Hospital, Bengaluru.
135) As per Ex.P.21 - Discharge Summary, in the
diagnoses column, it is mentioned as Fracture of shaft of femur
(left), cut lacerated wound right knee.
136) In page No.2 of Ex.P.21, procedure done in the
hospital shows that the petitioner has been treated with
intramedullary nailing of left femur fracture and suturing of right
knee. From this, it is clear that the petitioner has underwent
58
surgery of nail fixation of fracture on 07.09.2016.
137) Thus, considering the nature of injuries and the
period of treatment, petitioner is awarded compensation of
Rs.60,000/- towards Pain and Sufferings.
138) From Ex.P.21, it is clear that the petitioner has taken
treatment as an inpatient from 04.09.2016 to 17.09.2016 in the
above referred two hospitals, totally for a period of 14 days.
Therefore, a compensation of Rs.14,000/- is awarded as
compensation towards Food, Nourishment and Attendant
charges.
139) PW 6 in his chief examination affidavit has deposed
that implants are insitu and the petitioner is required to undergo
another surgery. Therefore, the petitioner is awarded
compensation of Rs.25,000/- under the head future medical
expenses, which shall not carry any interest.
140) It is the case of the petitioner that he has spent huge
amount for his treatment. For that, the petitioner has relied on
Ex.P.23 - Series of Medical Bills. Sl.No.1 of Ex.P.23 is the
Inpatient Bill issued by Prashanth Hospital at the time of
discharge for a total amount of Rs.1,24,340/-. Sl.No.3 and 4 are
with reference to purchase of nail invoice. From the evidence of
PW 6, the petitioner has proved that he underwent surgery and
59
implants are insitu. Sl.No.5 to 44 in Ex.P.23 are the medicine
purchase bills. In the Final Bill, pharmacy bills and implants
purchase amount are not included. The total of all the bills
comes to Rs.1,83,155/- and accordingly, the petitioner is
awarded compensation of Rs.1,83,155/- towards medical
expenses.
141) It is the case of the petitioner that he sustained
permanent disability due to the injuries sustained in the
accident. For that, the petitioner has relied on the evidence of
PW 6. PW 6 in his chief examination affidavit, with reference to
the present petitioner, PW 6 has deposed that the petitioner
complained pain and swelling over right thigh, difficulty in sitting
squat, crossed leg, difficulty in climbing stairs and running,
difficulty in turning, stand on left leg. On examination, he
noticed swelling present over left thigh, his flexion 100 degree
as against 130 degree, rotation 35 degree as against 45 degree,
knee flexion 100 degree as against 140 degree. He has
assessed the percentage of disability with reference to left lower
limb at 39% and whole body at 13%.
142) As already stated above, PW 6 has admitted that he
is not the treated doctor of the petitioner. He has not assessed
the functional disability of any of the injured petitioner's. Only
60
he has assessed the physical disability.
143) It is the specific case of the petitioner that he
completed B.E., and at the time of accident, he was working in
IBM and getting a salary of Rs.6 lakhs per annum. For that, he
has produced Ex.P.32 - Appointment Letter and Ex.P.33 - Salary
Certificate.
144) Specific question was asked to PW 4 that IBM will
have insurance coverage and he has got reimbursed the medical
bills of himself and his brother and mother. He has denied the
same and further stated that he has not claimed any
reimbursement of medical bills. In the present case as well as in
the other connected cases, original bills have been produced.
Therefore, it cannot be said that either present petitioner or
other petitioners have got reimbursed the medical bills from
IBM. From Ex.P.33, it is clear that the petitioner was working in
IBM. During the course of cross-examination, PW 4 has
admitted that his salary is used to be deposited in his account.
Even though he has deposed that he has no impediment to
produce his account statement, but he has not produced the
same. As per Ex.P.33, his gross income is Rs.42,359.42 paisa.
After deducting PF contribution, Professional Tax and Income Tax,
his net salary is Rs.39,186.42 paise. Considering Ex.P.33 - Pay
61
Slips, for the month of June'2016 July'2016 and Augus5'2016, it
is clear that net income varied based on deductions.
145) For the month of June'2016, there is a deduction of
Rs.1,048/- towards income tax. But for the month of
August'2016, income tax deducted is Rs.662/-. Considering the
above said facts, income of the petitioner, after deduction of
income tax, is taken as Rs.40,000/- per month.
146) As already stated above, the petitioner is working in
IBM as an engineer. The evidence of PW 6 is not sufficient to
come to the conclusion that there is 13% disability, which affects
his earning capacity. As the petitioner is facing physical problem
with reference to lower limb which caused inconvenience to
travel and for field work, therefore, the percentage of disability
is taken as 5% to whole body. 5% of Rs.40,000/- comes to
Rs.2,000/-. At that rate, annual loss of income comes to
Rs.24,000/-. As per Ex.P.22, the year of birth of petitioner is
1991. Accident having occurred in the year 2016, the petitioner
would be 25-26 years old at the time of accident and therefore,
his age is taken as 26.
147) As per Sarla Verma Case reported in 2009 ACJ 1298,
the multiplier applicable is 17 and therefore, the petitioner is
awarded compensation of Rs.4,08,000/- towards loss of future
62
income on account of disability.
148) Considering the nature of injuries sustained by the
petitioner in the accident, the petitioner may not have been in a
position to attend to his work for a minimum period of 2 months.
Hence, the petitioner is awarded compensation of Rs.80,000/-
towards loss of income during treatment and rest period, at the
rate of Rs.40,000/- per month.
149) At the first instance, the petitioner was treated at Sri
Saibaba Hospital, Shirdi, Maharastra and thereafter, he was
shifted to Prashanth Hospital, Bengaluru. In both the hospitals,
she was treated as an inpatient. Considering the same, the
petitioner is awarded compensation of Rs.5,000/- towards
transportation charges.
150) Thus, the petitioner is awarded compensation as
under:-
Sl.No Heads of Compensation Amount of
Compensation
1. Pain and suffering 60,000.00
2. Food, Nourishment and 14,000.00
Attendant charges
3. Medical Expenses 1,83,155.00
4. Loss of income during 80,000.00
treatment and rest period
5. Loss of future income on 4,08,000.00
account of disability
63
6. Transportation charges 5,000.00
Total 7,75,153.00
151) Thus, the petitioner in MVC No.3358/2017 is
awarded compensation of Rs.7,75,153.00 together with interest
at 6% p.a. from the date of petition till realisation.
152) 50% of the compensation amount together with
proportionate interest is ordered to be deposited in the name of
the petitioner for a period of 5 years and the balance 50% with
proportionate interest is ordered to be released to the petitioner.
153) While answering Issue No.1 and 2, it is held that the
accident has occurred due to the contributory negligence of
driver of truck No.MH.04/CA.4847 and the driver of the Scorpio
Car No.KA.41/N.1818, to the extent of 80:20 and accordingly, the
petitioner is entitled to claim compensation from the
respondents.
154) Now, the question is whether the respondent No.3
Insurance Company is liable to pay the compensation.
155) In the Statement of Objections, the respondent No.3
has taken the contention that the truck bearing
No.MH.04/CA.4847 is not insured with the Ahmednagar Branch of
3rd respondent - United India Insurance Company Ltd.
64
156) On the contrary, the respondent No.2 has taken the
specific contention that on 02.09.2016, he has paid the premium
for the insurance policy by handing over DD for Rs.17,901/-.
However, the Policy copy is not produced by the respondent No.2
in this case.
157) The respondent No.2 claims that he has purchased
the truck from the respondent No.1. For that, Ex.R.4 - Vehicle
Purchase Receipt along with its translation and Agreement at
Ex.R.5 are produced by the respondent No.2 during his evidence
as RW 2.
158) From going through the said documents and their
translation, it is clear that prior to the occurrence of the accident
on 04.09.2016, there was an Agreement between the respondent
No.1 and 2 and the respondent No.2 has purchased the truck
from the respondent No.1 and possession was handed over.
159) To prove that he has insured the truck with the
respondent No.3 - United India Insurance Company of
Ahmednagar Branch, the respondent No.2 has relied on his own
oral evidence and the evidence of RW 4 and Ex.R.3, R.6, R.7,
R.7(a) and R.14.
160) On the contrary, the respondent No.3 to prove that
the Company has not received the premium as on 02.09.2016
65
and the policy was not issued to the owner of the truck
No.MH.04/CA,4847, relied on the oral evidence of RW 1 and
Ex.R.1 and R.2.
161) Ex.R.1 is the Policy with reference to the truck
No.MH.04/CA.4847 for the period 20.07.2013 to 19.07.2014.
Ex.R.2 is the letter written by the United India Insurance Co.,
Ltd., Ahmednagar Branch. Along with Ex.R.2, they have
produced the print out of the screen shot of policy with
reference to truck and there was no policy as on 02.09.2016.
162) On the contrary, Ex.R.3 is the letter, in handwriting,
dated 02.09.2016, acknowledging receipt of DD NO.471400 from
the second respondent for a sum of Rs.17,901/- for vehicle
insurance purpose for the period 02.09.2016 to 01.09.2017
midnight in respect of vehicle truck No.MH.04/CA.4847.
Genuinity of this Ex.R.3 is disputed by the respondent No.3 -
Insurance Company during the course of cross-examination of
RW 2.
163) During the course of cross-examination done to RW 2
on 04.10.2021, after recalling RW 1, questions were asked to him
with reference to Ex.R.3. During that cross-examination, RW 2
has answered that Ex.R.3 bears the seal of United India
Insurance Co., Ltd., Ahmednagar Branch. However, he has
66
stated that he cannot identify the person who has issued Ex.R.3.
RW 2 further admitted the suggestion that Ex.R.8 is with
reference to only for cheques.
164) Apart from Ex.R.1 and R.2, the respondent No.3 has
relied on Ex.R.8 ie., Counterfoil of Union Bank for having
presented the cheque for encashment by United India Insurance
Company Ltd. In view of the admission given by RW 1 that
Ex.R.8 is only with reference to cheque presented by the
company to the Union Bank, Ex.R.8 is not helpful to the
respondent No.3 - Insurance Company to prove that the
Insurance Company has not received any amount from the
respondent No.2 through Demand Draft.
165) To prove that by way of Demand Draft on 02.09.2016
as per Ex.R.3, the respondent No.2 has purchased Demand Draft
for Rs.17,901/- from Anand Nagari Sahakari Path Sanstha Ltd.,
relied on Ex.R.6 relevant entry in the Statement of Account of
Axis Bank Account and Ex.R.7 Letter issued by Anand Nagari
Sahakari Path Sanstha Ltd., stating that Demand Draft
No.471400 amounting to Rs.17,901/- has been cleared on
26.09.2016 infavour of United India Insurance Company Ltd.
166) From these documents, it is clear that the respondent
No.2 has purchased DD for Rs.17,901/- in the name of United
67
India Insurance Company Ltd. Even though during the course
of cross-examination of RW 2 and RW 4, they have denied the
purchase of Demand Draft in the name of United India Insurance
Co., Ltd., towards the premium of Insurance Policy, but from the
combined reading of Ex.R.6, R.7, R.14 with the evidence of RW 6,
it is clear that the respondent No.2 has purchased the Demand
Draft bearing No.471400.
167) RW 4 in his chief examination has deposed that he
was working as Manager of the Anand Nagari Sahakari Path
Sanstha Ltd., from the last 15 years. In response to the
summons, he was authorised to produce and depose before this
Tribunal. Authorisation Letter is marked as Ex.R.13 and details of
encashment of Demand Draft/Bankers Cheque No.471400 for
Rs.17,901/- is marked as Ex.R.14.
168) During the course of cross-examination of RW 3, he
has in detail answered that Mohan Vijaykumar Patharkar ie., the
respondent No.2 has purchased the DD No.471400 by paying
cash to their financial institution and that the DD was obtained
on 02.09.2016 in the name of United India Insurance Company
Ltd., and that they will not have copy of DD with them. He has
admitted that in the account extract, person who has deposited
the amount to the bank will be mentioned and he has not
68
brought the ledger and he has further stated that at the time of
encashment of the said DD by the holder, there is no need for
filling challan. The said DD was encashed on 26.09.2016 in the
name of United India Insurance Company Ltd.. through Axis
Bank. For that, they have obtained letter from Axis Bank for
having encashed the DD in the name of United India Insurance
Co., Ltd.
169) Even though in this case, the Policy is not produced,
but from the above referred records, it cannot be said that there
was collusion between the respondent No.2, Anand Nagari
Sahakari Path Sanstha Ltd., and Axis Bank and they have created
documents like statement at Ex.R.6 during 2016 itself. To
disbelieve the evidence of RW 4, the above said answers given
by him during the course of his cross-examination and denial
suggestions are not sufficient. Even though from the evidence of
RW 4 and Ex.R.14 and P.7, it is not clear that for what purpose
DD was not handed over to United India Insurance Co., Ltd..
170) In view of the above fact finding that RW 2 had
purchased DD in the name of respondent No.3, now the question
is whether the respondent No.2 has proved that DD purchased
was towards the insurance premium of truck involved in the
accident, is to be seen.
69
171) To prove the same, the respondent No.2 relied on
Exhibit R.3, which is disputed by respondent No.3 as stated
above.
172) In the chief examination, RW 2 has stated that he
handed over DD towards the premium of insurance of his vehicle
No.MH.04/CA.4847. During the course of cross examination of
RW 2, it is specifically questioned that the Insurance Company
will issue receipt in a format, but not hand written receipts. For
that, RW 2 has given explanation to the effect that on that day,
server was down. Therefore, hand written receipt was given to
RW 2. His answer coupled with the admission of RW 1 that
Ex.R.3 bears the seal of Ahmednagar Branch United India
Insurance Company Ltd., probabalises the case of the
respondent No.2, thereby, the evidence of RW 2, above referred
evidence of RW 4 and Exhibit R.7 and 14 are sufficient to prove
genuinity of Ex.R.3. From Ex.R.3, it is clear that it was towards
the insurance premium of truck involved in the accident.
173) Subsequent proof of the fact that the DD was
encashed on 26.09.2016 by United India Insurance Co., Ltd. In
Ex.R.3, vehicle number and purpose as to why DD was handed
over is mentioned.
174) From Ex.R.3, it is proved that the respondent No.2 has
70
handedover DD for Rs.17,901/- to obtain Insurance Policy on
02.09.2016 to United India Insurance Co., Ltd. With reference to
vehicle No.MH.04/CA.4847.
175) Now, the question is, in the absence of issuance of
Insurance Policy, whether the respondent No.3 can be held liable
to pay the compensation, is to be seen.
176) In view of my above said finding, the respondent No.2
has proved that he has paid premium for issuance of Insurance
Policy on 02.09.2016 itself and during the course of cross-
examination of RW 2, he has clearly deposed that after
04.09.2016, he has approached the Ahmednagar Branch of
United India Insurance Co., Ltd. For getting the policy. The
company has not issued policy by stating that the accident has
occurred on 04.09.2016. The date of accident is 04.09.2016 and
2 days prior to the accident, the respondent No.2 has paid the
premium for obtaining the Insurance policy. In view of my above
said discussion, the respondent No.2 has proved that he has paid
Rs.17,901/- towards insurance premium for vehicle truck
No.MH.04/CA.4847 on 02.09.2016 itself. In Ex.R.3, it is clearly
mentioned that the Policy would commence to cover risk from
02.09.2016 to 01.06.2017. Proof of Ex.R.3 by respondent No.2
for obtaining insurance policy with effect from 02.09.2016, he
71
handed over DD and after the accident, DD was encashed by
insurance company, are sufficient to fix the liability on
respondent No.3 in the absence of insurance policy. Therefore,
the 3rd respondent Insurance Company is liable to indemnify the
respondent No.1 and 2 and pay the share of the compensation to
the petitioners.
177) Issue No.4 in all the cases :- In view of the
discussions made above, I proceed to pass the following: -
ORDER
MVC No.3354/2017 The petition filed by the petitioners is allowed in part against the respondents No.1. to 3.
The petitioners are entitled for a compensation of Rs.35,86,663.00/- (being 80% of total compensation of Rs.44,83,329/-) with interest at the rate of 6% per annum, from the date of petition till realisation.
Compensation amount is apportioned amongst the petitioners at the ratio of 80:10:10.
The respondent No.3 shall indemnify the respondent No.1 and 2 and pay the compensation amount with interest within 2 months from the date of this order.
72
Out of the compensation amount apportioned in favour of petitioners, 50% with proportionate interest is ordered to be deposited in FD in their respective for a period of 5 years in any nationalised or scheduled bank of their choice. Remaining 50% compensation amount with proportionate interest is ordered to be released to them. Interest on the FD is payable on maturity. MVC No.3355/2017 The petition filed by the petitioner is allowed in part against the respondents No.1 to 3.
The petitioner is awarded a compensation of Rs.6,57,544/- (being 80% of total compensation of Rs.8,32,930/-) with interest at the rate of 6% per annum, on Rs.6,32,544/- only, from the date of petition till realisation.
The respondent No.3, the Insurer shall indemnify the respondent No.1 and 2 and pay the compensation amount within 2 months from the date of this order.
As the petitioner himself was the driver of the Scorpio Car at the time of accident and 20% contribtory negligence is attributed to him, he is not entitled to claim balance 20% of compensation ie., Rs.1,64,386/- from the respondent No.4, the owner of the Scorpio Car.
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Entire compensation amount awarded to the petitioner, together with accrued interest is ordered to be released to him as he incurred substantial amount for his treatment. MVC No.3356/2017 The petition filed by the petitioner is allowed in part against the respondent No.1 to 3.
The petitioner is awarded a compensation of Rs.4,55,160/- (being 80% of total compensation of Rs.5,68,950) with interest at the rate of 6% per annum from the date of petition till realisation.
The respondent No.3, the Insurer shall indemnify the respondent No.1 and 2 and pay the compensation amount within 2 months from the date of this order.
Entire compensation amount awarded to the petitioner, together with accrued interest is ordered to be released to him as he incurred substantial amount for his treatment. MVC No.3357/2017 The petition filed by the petitioner is allowed in part against the respondents No.1 to 5.
The petitioner is entitled for a compensation of Rs.2,97,020/- with interest at the rate of 6% per annum, on 74 Rs.2,72,020/- only, from the date of petition till realisation.
Out of the total compensation amount of Rs.2,97,020/- the the respondent No.1 to 3 are liable to pay 80% ie., Rs.2,37,616/- and the respondent No.4 and 5 are liable to pay balance 20% ie., Rs.59,404/-.
The Insurers of the respective vehicles shall indemnify the owners of the vehicles and shall pay the compensation amount with interest within 2 months from the date of this order.
As the petitioner has incurred substantial amount for his treatment, entire compensation amount with accrued interest is ordered to be released to the petitioner. MVC No.3358/2017 The petition filed by the petitioner is allowed in part against the respondents No.1 to 5.
The petitioner is entitled for a compensation of Rs.7,75,153.00 with interest at the rate of 6% per annum, on Rs.7,50,153/- only, from the date of petition till realisation.
Out of the total compensation amount of Rs.7,75,153.00, the respondent No.1 to 3 are liable to pay 80% ie., Rs.6,20,122.00 and the respondent No.4 and 5 are liable to pay balance 20% ie., Rs.1,55,031.00.
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The Insurers of the respective vehicles shall indemnify the owners of the vehicles and shall pay the compensation amount with interest within 2 months from the date of this order.
50% out of the compensation amount together with proportionate interest is ordered to be deposited in FD in the name of the petitioner for a period of 5 years in any nationalised or schedule bank of the choice of petitioner and the balance 50% with proportionate interest is ordered to be released to the petitioner.
Advocate's fee is fixed at Rs.1000/- in each case. Draw an award accordingly.
(Retain original Judgment in MVC No.3354/2017 and a copy in other case).
(Dictated to the Judgment Writer, transcription thereof revised, corrected and then pronounced in Open Court on 25.03.2022) (SMT.PRABHAVATI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore ANNEXURE Witnesses examined on behalf of the petitioners:
P.W.1 : Rajeshwari
P.W.2 : Suresh B.,
P.W.3 : Mohan P.,
P.W.4 : Jyothiswar B.,
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P.W.5 : Dr.Suresh
P.W.6 : Dr.C.V.Kumara
Documents marked on behalf of the petitioners:
Ex.P-1 : Crime Details Form
Ex.P.1(a): Translation of Ex.P.1
Ex.P-2 Charge Sheet
Ex.P.2(a) Translated Copy of Ex.P.2
Ex.P.2(b) Affidavit of Translator
Ex.P-3 : Copy of Aadhaar Card
Ex.P-4 : Death Certificate
Ex.P-5 : IT Returns for the AY 2013-14 and
2015-16
Ex.P-6: TDS for the AY 2014-15
Ex.P.7: Discharge Summary
Ex.P-8: Discharge Summary
Ex.P-9: 87 Medical Bills
Ex.P.10: 19 Prescriptions
Ex.P.11: Discharge Summary
Ex.P.12: Copy of Aadhaar card
Ex.P.13: 156 Medical Bills
Ex.P.14: 21 Prescriptions
Ex.P.15: 10 OPD Follow Up Slips
Ex.P.16: Discharge summary
Ex.P.17: Discharge Summary
Ex.P.18: Copy of Aadhaar Card
Ex.P.19: 45 Medical Billls
Ex.P.20: 19 Prescriptions
Ex.P.21: Discharge Summary
Ex.P.22: Copy of Aadhaar Card
Ex.P.23: 44 Medical Bills
Ex.P.24: 16 Prescriptions
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Ex.P.25: FIR
Ex.P.25(a): Translated copy of FIR
Ex.P.26 Complaint
Ex.P.26(a) Translated copy of Ex.P.26
Ex.P.27 Inquest Report
Ex.P.27(a) Translated copy of Ex.P.27
Ex.P.28 Copy of Aadhaar Card
Ex.P.29 Bank Statement
Ex.P.30 Copies of Certificates
Ex.P.31 Certificate of Employment
Ex.P.32 Appointment Letter
Ex.P.33 Salary Certificate
Ex.P.34 Copy of building construction
agreement
Ex.P.35 Authorisation Letter
Ex.P.36 Attested copy of MLC Extract
Ex.P.37 Police Intimation
Ex.P.38 to 41 4 IP Records
Ex.P.42 2 IMV Reports
Ex.P.43 Attested copy of Police Intimation
Ex.P.43(a) Translated coy of Police Intimation
Ex.P.44 Copy of Driving Licence
Ex.P.45 Recent Examination Report
Ex.P.46 2 X ray Films
Ex.P.47 Recent Examination Report
Ex.P.48 X ray Films
Ex.P.49 Recent Examination Report
Ex.P.50 1 X ray Film
Ex.P.51 Recent Examination Report
Ex.P.52 1 X ray Film
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Witnesses examined on behalf of the respondents :
RW 1 - R.Manjula RW 2 - Mohan Vijaykumar Patharkar RW 3 - Veera Gonsalves RW 4 - Deepak Dada Saheb Documents marked on behalf of the respondents:
Ex.R.1 - Lapsed copy of Insurance Policy Ex.R.2 - Letter dated 15.2.2018 issued by Division Office, Ahmednagar with copies of 2 documents and copy of document printed from Genisys Configuration Menu Ex.R.3 - Original Receipt dated 2.9.2018 for having paid premium through DD Ex.R.4 - Vehicle Purchase Receipt dated 11.3.2016 Ex.R.5 - Original English Translated Agreement dated 15.2.2017 Ex.R.6 - Bank Statement with Axis Bank Ex.R.6(a) Relevant Entry dated 26.09.2016 Ex.R.7 - Certificate dated 5.3.2021 issued by Anand Nagari Sahakari Path Sanstha Ltd.
Ex.R.7(a) - Translated Copy Ex.R.8 - Counter foil of remitted challan from 26.5.2016 to 1.11.2016 Ex.R.9 - Authorisation Letter Ex.R.10 - Insurance Policy Copy Ex.R.11 - Letter by Oriental Insurance Co., Ltd., to Rajeshwari Ex.R.12 - Postal Acknowledgement Ex.R.13 - Authorisation Letter Ex.R.14 - Details of Encashment of DD (SMT.PRABHAVATI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore