Bangalore District Court
Himself vs No.1 Has Examined Its Manager-Legal ... on 18 September, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 18th day of September, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B. (Spl.), L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.4818/2013
Sri. Srinivas Rathod, ..... PETITIONER
S/o. Gangu Rathod,
Aged about 36 years,
R/at Minchinal LT,
Bijapur Taluk,
Bijapur District.
(By Sri. K.T.Gurudeva Prasad, Adv.,)
V/s
1. M/s. Shriram General Insurance ...RESPONDENTS
Company Ltd.,
SS 2nd Floor, Monarch Chamber,
Infantry Road,
Bangalore - 560 001.
(Insurer of TATA Tempo bearing
Registration No.TN-70-D-1803)
2. Sri.G.Umashankar,
s/o Govindaswamy,
Major,
Door No.3/145,
New No.3/155,
Vennampalli Village,
Palepalli Post,
2 MVC NO.4818/2013
SCCH-7
Krishnagiri District,
Tamilnadu.
(Owner of Tata Tempo bearing
Registration No.TN-70-D-1803)
(R1- By Sri.Manoj Kumar.M.R., Adv.,)
(R2- Exparte)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, praying to award compensation of Rupees 4,00,000/- with current interest and costs.
2. The brief averments of the Petitioner's case are as follows;
a) The 2nd Respondent is the Owner of TATA Temp bearing Registration No.TN-70-D-1803 and the same is insured with the 1st Respondent Company.
b) On 02.08.2013 at about 2.45 p.m., when he was crossing Hosur Road, Konappana Agrahara on 25 ft. Service Road, in front of Anugraha Hotel, Bangalore, carefully, cautiously, keeping to the left side of the road and at that time, the TATA Temp bearing Registration No.TN-70-D-1803 driven by its driver in a rash and negligent manner dashed to him and with a result, he sustained multiple injuries all over the body.
3 MVC NO.4818/2013SCCH-7
c) Immediately after the accident, he was taken to Blossom Hospital, Bangalore, for treatment in an unconscious condition and after the first-aid treatment, he was taken to Sparsha Hospital, wherein, he was treated as an inpatient from 02.08.2013 to 05.08.2013. In the said accident, he suffered fracture of right clavicle and fracture of 3rd metatarsal bone in the left leg with head injury and also multiple soft tissue injury on the face. In the Hospital, wound debridement with suturing of the forehead and nasal wound laceration was done with local anesthesia. He was discharged with an advise to take complete bed rest and to attend the Hospital for periodical checkup and as per the advise of the Doctor, he was regularly attending the Hospital for periodical checkup.
d) He is even now suffering with permanent disability and is not in a position to work properly. The fracture of right clavicle has resulted in permanent disability and he is not in a position to lift any weight in his right hand. Further, he is getting frequent severe headache due to the head injury and the injury suffered to his face has created an ugly appearance and disfiguration.
e) He is claiming compensation for the injuries sustained in the accident towards general damages, pain and suffering, mental agony and shock, loss of amenities, loss of income during the period of treatment and future earning capacity amounting to Rupees 4.00 Lakhs. He has so far spent more than Rupees 1.00 Lakhs towards medical expenses, 4 MVC NO.4818/2013 SCCH-7 conveyance, nourishment and attendant charges and is still under treatment.
f) He is at the time of accident, was working as a Driver at BMTC and was drawing salary of Rupees 17,000/- per month and in view of the accident, he could not attend to his duties and thereby lost his salary.
g) The accident took place due to the rash and negligent driving of TATA Temp bearing Registration No.TN-70- D-1803 and Electronic City Traffic Police have filed a charge sheet as against the driver of the Tata Tempo, who was driving the Tempo at the time of accident for his rash and negligent driving in causing the accident.
h) He has not claimed any compensation under Section 140 of the Motor Vehicles Act before any other Authority. Hence, this Petition.
3. Initially, though the notice was duly served on the Respondent No.1, it was remained absent and hence, it was placed as exparte on 19.11.2013. Later, the Respondent No.1 has appeared before this Tribunal through its Learned Counsel and as per the Order dated 10.12.2013 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.1 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order 5 MVC NO.4818/2013 SCCH-7 dated 22.09.2014 passed on I.A.No.II, the written statement filed by the Respondent No.1 is taken on file.
4. Though the notice was duly served on the Respondent No.2, he was remained absent and hence, he is placed as exparte on 19.11.2013.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The accident occurred due to the carelessness of the Petitioner himself, who had so made a daring attempt in crossing the road, where under said road being a two way service road width being 25 feet adjacent to Hosur Main Road, Konappana Agrahara, as to entry of the use of road for vehicles, so as to facilitate free flow of vehicles on Hosur Main Road. The Petitioner Sri. Srinivas Rathod, being a driver by profession, ought not to have taken risk of crossing the road at a place where under there being no pedestrian crossing or traffic signal, as to avoid any mishap.
b) As per the complaint to jurisdictional Police Station since lodged at around 18.30 hours or 06.30 p.m., by Mr.Eresh, co-employee of the Petitioner does indicate as to the informant/complainant was so intimated about Petitioner's having met with a RTA through Electronic City Traffic Police. Whereas, at the material time of accident, the Petitioner was proceeded crossing the busy service road.
6 MVC NO.4818/2013SCCH-7
c) The Petitioner is not a resident of Bangalore and hence, present claim is out of jurisdiction.
d) It seeks protection under Section 147 and 149 of the M.V. Act, 1988.
e) The insured/Respondent No.2 as per Condition No.1 of the Policy, terms and conditions of policy of Insurance, has not intimated about the alleged accident to it, since insured with it vide Policy bearing No.10003/31/14/077897, valid from 01.06.2013 to 31.05.2014 in favour of 2nd Respondent and that liability of it is as per terms and condition of policy of insurance.
f) As per Section 134(c) of M.V. Act, 1988, it is mandatory duty of Respondent No.2, to furnish particulars of Policy of insurance in addition, details about accident, but, however, Respondent No.2 has failed to comply with statutory obligations.
g) As per Section 158(6) of M.V. Act, 1988, it is mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days from the date of the information, but, the Electronic City Traffic Police Station Authorities have failed to forward the documents and not complied with the statutory demand.
h) The Respondent No.2, i.e. the owner-cum-driver of insured vehicle - Medium Goods Vehicle bearing Registration No.TN-70/D-1803, being the accused driver, who was driving 7 MVC NO.4818/2013 SCCH-7 the insured vehicle, at the material time of accident, was not holding a valid and effective driving licence to drive the insured vehicle. As such, the insured/owner of the insured vehicle had violated an important condition in the Insurance Policy and had acted in contravention to the Motor Vehicle Act, 1988, in having entrusted the insured vehicle to be driven by a person, who did not possess a valid and effective driving licence to drive insured vehicle, as such, had violated the Condition of Driver's clause. As well, the Respondent No.2 had so permitted the insured vehicle to be driven in a public place without valid permit and fitness certificate. Therefore, there is express breach and violation of the terms and conditions of the policy. Therefore, it is not liable to indemnify the owner of MGV bearing Registration No.TN-70-D-1803.
i) As per Sketch and Mahazar, the alleged accident having occurred on a busy service road adjacent to Hosur Main Road, during busy traffic hours at around 02.45 p.m., where under the said road being a two way road being width of 25 feet for free flow of the vehicles, the Petitioner ought not to have taken the risk of venturing into crossing the busy service road adjacent to Hosur Main Road, without there being any zebra crossing or traffic signal and alleged accident since so having occurred due to Petitioner's own negligence. As such, the said claim petition is not maintainable. As said accident had so occurred due to the sole negligence of Sri. Srinivas Rathod himself, which crossing the busy service road adjacent to Hosur Main Road during morning peak hours.
8 MVC NO.4818/2013SCCH-7
j) The Petitioner since being still under treatment is not assessed for present in regard disablement.
k) As well, that, the Petitioner immediately being shifted to Blossom Hospital and being under medical supervision, are the only injures so sustained. As well, the Petitioner had not sustained any bony fractures except for clavicle fracture and that the treatment so obtained by the Petitioner at Sparsha Hospital, in fact is not the treatment so obtained towards the accidental injuries so sustained on 02.08.2013.
l) The MGV was being driven slowly, carefully and cautiously on correct side of the road, by observing traffic rules and regulations by sounding horn. The entire accident is traceable to negligence of Sri. Srinivas Rathod himself, who was so proceeding as pedestrian crossing the road and that had taken the risk of having ventured crossing the service road, there being no pedestrian lane or traffic signal as well so as facilate Sri. Srinivas Rathod to cross service road.
m) The said accident has occurred due to the sole contributory negligence of Petitioner wherein, Sri. Srinivas Rathod had so ventured into the crossing the service road, thus unmindful of the flow of traffic and that, the Petitioner ought to have taken reasonable care for the safety of himself being a driver of BMTC, while crossing the service road, observing the oncoming vehicles at a place reserved for pedestrian crossing.
9 MVC NO.4818/2013SCCH-7 The act of the Petitioner in having taken the risk of crossing the road and that, the alleged accident having occurred on the service road, adjacent to Hosur main road, clearly establishes Petitioner's failure in taking reasonable care and is blameworthy to a greater extent, but, not less than 75% as an "author of his owner wrong". Hence, the compensation, if any, awardable to Sri. Srinivas Rathod, Petitioner, is to be reduced by 75% for Mr. Veeresh himself having contributed for accident.
n) It craves of this Hon'ble Court to take all the defences available to 2nd Respondent under Section 170 of M.V. Act and contest the case on all grounds apart from those specified under Section 149 (2) of M.V. Act.
o) Without prejudice to the foregoing contentions, the amount of compensation claimed is highly exaggerated, illegal, fanciful and the Petitioner is trying to make a windfall out of an unfortunate accident in as much as has claimed highly disproportionate amount having no regard to truth. It is obvious that, the Petitioner is trying to convert an unfortunate incident into a windfall and it is not liable to pay Rupees 5,00,000/-. Hence, prayed to award just and reasonable amount of compensation.
6. Based on the above said pleadings, I have framed the following Issues;
10 MVC NO.4818/2013SCCH-7 ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the TATA Temp bearing Registration No.TN-70-D-1803 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
7. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined Dr.Nagaraj.B.N. as P.W.2 and also Assistant Sub-Inspector as P.W.3 and has placed reliance upon Ex.P.1 to Ex.P.16. On the other hand, the Respondent No.1 has examined its Manager-Legal Department as R.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.1. Ex.R.1 is a Medico Legal Case Register, which is available in Ex.P.15 Case Sheet, which is marked through P.W.2, during the course of cross-examination, by confrontation.
8. Heard the arguments.
9. In support of the submission, the Learned Counsel appearing for the Respondent No.1 Sri. Manoj Kumar M.R., has placed reliance upon the decisions reported in, 11 MVC NO.4818/2013 SCCH-7
i) 2007 (3) T.A.C. 11 (S.C.) (Oriental Insurance Company Ltd., V/s Premlata Shukla and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Section 166- Claim petition-Maintainability of -Rash and negligent driving-proof of-Collision between Tempo trax and truck resulting in death of deceased traveling in Tempo trax-First information report-Proof and admissibility of- offending truck could not be traced-Claim petition filed against owner, driver and insurer of Tempo trax-Tribunal analyzed materials on record including RIR and found driven of Tempo trax not negligent in driving and dismissed claim petition-On appeal High Court relied on deposition of claimants and opined that FIR having been not legally proved, driver of Tempo trax, was guilty of rash and negligent driving-Held, proof of rashness and negligence on part of driver being sine quta non for maintaining any application under Section 166 of the Act- Factum of accident could not be proved form FIR-Once a part of contents of documents admitted in evidence, party cannot be permitted to run round and contend that, other contents had not been proved-Both parties relied upon FIR-Impugned judgments of High Court not sustainable and set aside.
ii) 1994 ACJ 1303 (High Court of Orissa at Cuttack) (Mataji Bewa and Others V/s Hemanta Kumar Jena and Another), wherein, it is observed that, Motor Vehicles Act, 1988, Section 110-A Section 166 of 1988 Act)-Claim application-
12 MVC NO.4818/2013SCCH-7 Evidence-Appreciation of -Charge sheet in criminal case showed that, deceased was traveling in the truck and sustained fatal injuries when the truck met with accident - Positive evidence of the claimants that, the deceased was a pedestrian and the truck knocked him down and this evidence was not impeached in cross-examination-Tribunal relied upon the charge sheet and held that the deceased was traveling in the truck-Whether the Tribunal's finding justified-Held: no; contents of charge sheet cannot be treated as an evidence in a claim proceeding; Tribunal must rely upon the evidence led before it.
iii) ILR 2009 KAR 2921 (Bajaj Allianz General Insurance Co. Ltd., V/s B.C.Kumar and Another), wherein, it is observed that, MOTOR VEHICLES ACT, 1988 - Accident claim- Award Insurance Company appeal - Plea of Guilt by the driver conviction in the Criminal case - Can the plea of guilt by the driver become the sole criterion for allowing the claim petition by the M.A.C.T.-A Case of Insurance Company disputing the very factum of Accident -
Sustainability of the award passed by the M.A.C.T - HELD, The M.A.C.T should not and ought not to place sole reliance on the judgment of the Criminal Court while considering the issue of the factum of the accident and the consequent negligence, as stated in the claim petition filed before the Tribunal. But, the Tribunal will have to assess the evidence before it independently of any finding of the Criminal Court on the question of the driver pleading guilty. At the most, the circumstance of the driver pleading guilty may be considered as one of the pieces of evidence to support the case of 13 MVC NO.4818/2013 SCCH-7 the claimant. But,, the Tribunal should not place implicit reliance only on the circumstance of the driver having pleaded guilty before the Criminal Court and such an approach by the Tribunals will be not only and side approach but, at the same time there is every likelihood of the pleading of guilt by a driver before the Criminal Court having been obtained by adopting various methods so as to ensure that, the claimant succeeds before the M.A.C.T in getting compensation -FUTURE HELD, There has been spate of cases wherein false claims have been made before the claims Tribunal and false implications are also on the increase. The M.A.C.Ts are constituted not only to allow the claim petitions which are genuine in nature but,, at the same time, the Tribunals also will have to keep in view that, compensation should not be awarded mechanically in every case and to accept the case of the claimant as if all that, the claimant says about the accident and the injuries is a truthful one. Merely because a claimant in a particular case comes out with the evidence that, the driver of the vehicle is convicted on his pleading guilty, the Tribunal should not go by the plead guilty factor alone, but, it is required to appreciate the evidence before it from every angle and if there is a good reason to question the very case of the claimant or doubt the very manner of the accident, in such cases, the Tribunal will have to view the factor of pleading guilty along with the entire evidence placed before it and make an assessment of the whole situation. - Award passed by the Tribunal is not justified. Appeal is allowed.
iv) ILR 2009 KAR 3562 (Circuit Bench at Gulbarga) (Veerappa and Another V/s Siddappa and Another), wherein it is observed that, 14 MVC NO.4818/2013 SCCH-7 (A) Motor Vehicles Act 1988- Accident claim- Dismissal of claim petition - FRAUS ET JUS MUNQUAM COHABITANT' 'Fraud and justice never dwell together - An attempt on the part of the 1st Respondent/owner to collude with the claimants with the fond hope of saddling Insurance Company to pay compensation-1st Respondent/owner of the vehicle admitted the accident and had no objection for award of compensation - Held, even though the owner of the vehicle is unmistakable terms, has admitted the accident, that admission has no value in the eye of law. He has admitted, something about which he has no knowledge and which he has not seen. It is clear that the said admission is made with the sole object of getting compensation to the claimants as it is the Insurance Company which will pay, and not the owner, Though admission is the best piece of evidence, it cannot be accepted as gospel truth. The court can insist on proof of facts, if the admission is not satisfactory. In the instant case, since the court was not satisfied, it wanted the claimants to prove their case independently. The claimants have miserable failed to prove their cases. On facts, held, the accident took place on 26.06.2001. The insured died on 28.06.2001. No complaint is lodged by the father of the injured setting out the case now pleaded. According to him, he went to lodge a complaint on 28.08.2001. They refused to receive it. Therefore, he lodged a private complaint before the jurisdictional Magistrate on 31.08.2001. The earlier FIR, Charge Sheet are all suppressed both by the Police and the claimant. The vehicle involved in the accident was never seized by the Police. The truth came out during investigation by the insurer. Under these circumstances, the Tribunal was justified in dismissing the claim petition.
15 MVC NO.4818/2013
SCCH-7
(B) MOTOR VEHICLES ACT 1988- Claim
petition- Dismissal of - Fraud played on the courts by the claimants with the commirance of the 1st Respondent - Liability of the Insurance Company to pay the compensation.
Held: Insurance Company not liable to indemnify the owner of the vehicle who has played fraud and not liable to pay compensation to the claimants who are also party to the fraud.
FURTHER HELD:- It is a clear case of fraud played on the court by the claimants with the connivance of 1st Respondent. Once the insured plays fraud, admits the liability with the sole object of foisting liability on the Insurance Company, though infact he knew that it is not true, liability of the Insurance Company to indemnify such insured cases. Therefore, there is no obligation on the part of the Insurance Company to indemnify the insured even though he has taken the policy was the statute mandates that the Insurance Company has to indemnify the insurer and pay compensation to third party. When fraud is established from the material on record, such statutory obligation stands discharged.
There is no third party liability on the part of the Insurance Company to pay compensation to the claimants. This amount is awarded in order to see that in future such false defences are not filed before court, judicial process is not abused. Therefore, it is only the 1st Respondent owner who is liable to pay the amount. Dismissal of the claim petition against the Insurance Company is affirmed.
16 MVC NO.4818/2013SCCH-7
v) 2006 (1) T.A.C. 548 (H.P) (High Court of Himachal Pradesh) (National Insurance Co. Ltd., V/s Dhanbir Kumar and Others), wherein it is observed that, Constitution of India, 1950, Article 227-Motor Vehicles Act 1988 Sections 166 and 168-Award of compensation-Not an iota of evidence produced to prove any fact about sustaining injuries on any part of body or claimant was working anywhere or was drawing any emoluments or remained absent for any period owing to injuries sustained in accident. Mere bald statement of claimant having no relevance or significance in determining compensation - Tribunal totally misdirected itself by adopting process of conjecturing and admittedly awarded compensation without any evidence-No evidence produced even for simple injuries-No amount of compensation can be awarded based on conjectures of Tribunal or ipse dixit of a claimant-Impugned award of Tribunal set aside.
vi) M.F.A.NO.4897 of 2006 (MV) (High Court of Karnataka) (Sri Sundaresh V/s Bajaj Allianz General Insurance Company Limited and Another), wherein, it is observed that,
6. Having regard to the glaring discrepancies that, are apparent from the record, the Tribunal has rightly rejected the claim petition. Though an attempt is made to contend that, there are their documents which would point to the injuries and disability which the appellant suffers from and would necessarily have to be addressed with reference to the admission of guilt by the rider of the vehicle bearing No.KA-01-U-7639 does not merit consideration. The appeal is dismissed.
17 MVC NO.4818/2013SCCH-7
vii) 2008 ACJ 1149 (High Court of Himachal Pradesh at Shimla) (Dharam Dev V/s Mohinder Singh and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Section 166 and 172- Claim application-False and vexatious claim- Compensatory costs-Claimant alleged that, has driver without waiting for any signal from the conductor started the bus, claimant fell down, sustained injuries and suffers 5% permanent disability-Defendants denied that, claimant had met with accident but, had sustained injuries by fall from stairs in his house- FIR was lodged after six months of the alleged accident and no explanation has been given why no FIR was lodged when the driver had fled away-Doctor was treated the claimant in the Hospital admitted that injury could have been caused fall on the stairs, record brought by Doctor nowhere stated that, claimant suffered injury in a vehicular accident. It is mentioned in OPD slip prepared at the time of admission that, he fell from the stairs-Discrepancy in the deposition of witnesses produced by the claimant about the persons who witnessed the accident and who took the injured to the Hospital shows that, a false story has been set up-Tribunal allowed compensation -Appellate Court set aside the finding of the Tribunal and dismissed the claim application-Appellate court held that, claimant filed a false and vexatious claim and is liable to pay costs assessed at Rupees 5,000/-.
Motor Vehicles Act, 1988, Section 166 and penal code, 1860, sections 191 and 193-Claim application-Vexatious claim-False evidence- Prosecution-Claimant made a vexatious clam that, he was injured in an accident when he was boarding a bus die to the negligence of the bus 18 MVC NO.4818/2013 SCCH-7 driver whereas he has sustained injuries when he fell from stairs in his house-Eye witness deposed having seen the accident and took the injured to the Hospital gave false evidence in judicial proceedings-high court directed that prosecution may be initiated against them for offences under section 191 and 193 of the Penal Code after giving a hearing to these persons.
viii) Civil Appeal No.3171 of 2009 (Supreme Court of India) (North West Karnataka Road Transport Corp., V/s Gourabai and Others), wherein, it is observed that, Challenge in this appeal is to the order passed by the learned single judge of the Karnataka High Court dismissing the appeal filed by the appellant. Challenge in the said appeal was to an award made by the Motor Accident Claims Tribunal No.VII, Bijapur (in short MACT). An award of Rupees 2,59,400/- was made. The main contention of the appellant before the MACT as well as before the High Court was that, the deceased did not sustain any injury in any accident involving the bus of the Corporation. Reference was made to the evidence of the Doctor, who had admitted the deceased to the Hospital, that, the deceased had suffered head injury due to fall from the height of 8 to 10 feet of his own house. Though this was specifically stated the written statement, the MACT and the High Court brushed aside the same stating that, there was indirect admission about the deceased having sustained injury in vehicular accident. The effect of the evidence of the Doctor and exhibit R-1 does not appear to have been looked into by the MACT and the High Court. MACT did not place reliance on the document R-1 on the ground that, the brother of the injured stated that he did not know what was written in the 19 MVC NO.4818/2013 SCCH-7 document and his signature was taken on one page. This conclusion overlooks from the fact that, a Doctor will not take a signature on a piece of paper mentioning something which is not correct. Exhibit R-1 establishes beyond the shadow of doubt that, the injuries sustained were not on account of any vehicular accident. That, being so, the MACT and the High Court were not justified in making any award. The order of the MACT and High Court stands set aside. The appeal is accordingly, allowed.
ix) ILR 2012 KAR 2689 (K.E.Basavarajappa V/s H.Chandrappa and Another), wherein, it is observed that, MOTOR VEHICLES ACT, 1988 -Section 173(1)- Accident claim-Judgment and Award-Appealed against-Claim for enhancement of compensation- Insurer disputing occurrence of the accident, involvement of the offending vehicle and its liability-HELD, Proof of an accident need not be beyond reasonable doubt, but, under the principle of preponderance of probabilities-ON FACTS, HELD, The case sheet reveals that, the Petitioner had drunk alcohol, there was positive smell, he was disoriented and was not in a position to handle the bile. The earliest information of the accident is by an accident due to the use of the vehicle bearing Registration No.KA-16-J-8788, whereas in the delayed complaint which was filed after four days, the vehicle referred to is KA-16-R-7185. It is not elicited from the evidence R.W.2 as to why the number of the Motor Cycle was wrongly mentioned in the case sheet. So, when there is such a controversy in the records produced by the parties, the interested version of the Petitioner is itself is not sufficient to explain the controversy and therefore he ought to have Accident examined other independent witness to 20 MVC NO.4818/2013 SCCH-7 rove the involvement of the vehicle mentioned in his complaint ON FACTS, FURTHER HELD, Therefore considering the facts on hand as Ex.R.2, case sheet reveals the earlier information of the involvement of a different vehicle, it is clear that, the material placed on record is not sufficient to prove the involvement of the vehicle alleged by the Petitioner in his complaint. It appears that, to make a false claim for compensation, the Petitioner subsequently has taken disadvantage of the circumstances and by falsely showing a different vehicle though he did not suffer any injury due to the accident of the said vehicle made a false claim for compensation. Hence, the Tribunal was not justified in holding that, an accident occurred due to the rash and negligent driving.
x) M.F.A.No.464/2010 (High Court of Karnataka) (Nagaraj V/s R.Muniraju and Another), wherein, it is observed that,
4. The Tribunal on an appreciation of the evidence on record has held that, the appellant/claimant has not proved the accident in question. The facts would point out that, there was collusion between the claimant and the owner of the vehicle in making the claim. It is relevant to state that, the owner of the vehicle did not appear before the Tribunal. As could be seen from the impugned judgment, the Mahazar, IMV report and seizure of the vehicle was done on the same day i.e., on 27.03.2007- the date on which the complaint was lodged which was about 2 months after the date of the alleged accident. This appears to be very unnatural. In this context, it is relevant to refer to the following observations made by the Tribunal:
21 MVC NO.4818/2013SCCH-7
7.......................................From the said aspect, it goes to show that, Petitioner has sustained injuries and if at all a case was registered as Medico Legal Case, the question will arise as to why the Hospital authorities have not informed the Police on the date of admission of the Petitioner to the Hospital. Wherein no documents has been placed before the Court to show that Hospital authorities have informed the Police on the date of accident itself when the Petitioner admitted to the Hospital and hence, from all these aspects, the probabilities cannot be ruled out that, as the Petitioner was inpatient in the Hospital for more that 2 months in order to get compensation, after getting discharged after the second though the offending vehicle might have been falsely implicated in the case to claim compensation. Hence, in that, case, Petitioner has not at all proved that, the offending vehicle bearing Registration No.KA-03-
MD-7728 has caused the accident to him and he has not proved that, the said accident occurred due to the negligence on the part of the driver of the said vehicle. Hence he is not entitled for any compensation.......' (underling supplied) I find no legal infirmity in the aforesaid reasoning of the Tribunal in holding that, the appellant had failed to prove the accident in question and the maruti van was falsely implicated in the case to claim compensation.
No ground to admit the appeal. Appeal
dismissed.
xi) 2009 ACJ 293 (High Court of Karnataka)
(Gurappa V/s Goudappagouda and Another), wherein, it is observed that, 22 MVC NO.4818/2013 SCCH-7 Motor Vehicles Act, 1988, section 166-Claim application-negligence-Claim by claimant alleging that his wife travelling as pr on motor cycle sustained fatal injuries when the motor cycle fell in a ditch due to its rash and negligent driving - Claimant had not lodged any complaint with the Police at the earliest point of time about the accident and a specific mention was made before the Doctor that deceased suffered head injury when she slipped from the steps-Whether the Tribunal was justified in dismissing the claim application on the ground that claimant failed to establish negligence of the motorcyclist- Held: yes.
xii) Criminal Appeal No.5509/2007 (Bajaj Allianz Insurance Co. Ltd., and Another V/s State by Halsur Gate Police and Others), wherein, it is observed that,
4. The contention of the Learned Counsel for the Petitioners is that, a false criminal case has been foisted though the deceased died not on account of the alleged accident and if the driver were to plead guilty in the criminal case, it would be binding on the claims Tribunal and the Petitioners being the insurer of the vehicle in question would be saddled with liability of the owner of the vehicle. Therefore, the Petitioners pray for quashing the criminal proceedings in C.C.No.1934/2007 on the file of MMTC, Bangalore.
The Police have investigated the case and laid charge sheet against the driver of the vehicle alleged to be involved in the accident. There is no abuse of process of criminal law. In the event of driver pleading guilty, the Petitioners can contest the case on the grounds including on the point of negligence. Therefore, the Petitioners have no 23 MVC NO.4818/2013 SCCH-7 right to seek for quashing the criminal proceedings. There is no good ground to entertain the petition.
In the result, the petition fails and the same is hereby dismissed.
10. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is entitled
for compensation of
Rupees 1,82,826/- with
interest at the rate of 6%
p.a. from the date of the
petition till the date of
payment, from the
Respondent No.1 to an
extent of 75%.
Issue No.3 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner has stated in his examination-in-chief that, he met with a road traffic accident on 02.08.2013 at about 2.45 p.m., when he was crossing Hosur Road, Near Konappana Agrahara on 25 feet Service Road, in front of Anugraha Hospital, Bangalore, carefully and cautiously, keeping to his left side of the road and by that time, a Tata Tempo Bearing Registration No.TN-70-D- 1803 driven by its driver in a rash and negligent manner 24 MVC NO.4818/2013 SCCH-7 dashed to him, with a result, he was fell down and sustained multiple injuries all over the body. He further stated that, immediately after the accident, he was taken to Blossom Hospital, Bangalore, in an unconscious condition and after first-aid treatment, he was taken to Sparsha Hospital. He further stated that, in the said accident, he has suffered injuries, like, fracture of right clavicle, fracture of 3rd Metatarsal, head injury and multiple soft tissue injury on face, forehead and nasal bridge. He has further stated that, at Sparsha Hospital, he was treated as an inpatient from 02.08.2013 to 05.08.2013 and after X-ray, the said fractures have been confirmed. He has further stated that, the accident took place due to the rash and negligent driving of the Tata Tempo Bearing Registration No.TN-70-D-1803 and the Electronic City Traffic Police have filed charge sheet as against the driver of the TATA Tempo.
12. To consider his oral version, the Petitioner has produced Ex.P.1 F.I.R, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 Spot Sketch, Ex.P.5 Charge Sheet, Ex.P.6 Wound Certificate, Ex.P.7 Discharge Summary, Ex.P.10 Laboratory Reports and Ex.P.14 X-ray films 11 in numbers.
13. No doubt, the P.W.1 in his cross-examination has denied the suggestion put to him by the Respondent No.1 that, there was no negligence on the part of the offending Tata Tempo Bearing Registration No.TN-70-D-1803 by its driver, but, his own negligence, the accident was taken place. The Petitioner 25 MVC NO.4818/2013 SCCH-7 has also examined the Investigating Officer of the Crime No.143/2013, which is relating to the present road traffic accident in question, as P.W.3, who has stated in his examination-in-chief that, one Earesh had lodged the complaint in the said Crime No.143/2013 and after registering the case, he was visited the accidental spot and Tempo bearing Registration No.TN-70-D-1803 is involved in the said accident. He has further stated that, the said vehicle was in the Station as it was shifted by their Police Staff on the grounds that, the driver of the said vehicle left it in the accidental spot itself. He has further stated that, he had investigated the said criminal case and he has filed a charge sheet as against the driver of the said Tempo and by that time of accident, the said Tempo was in the accidental spot and when he visited the accidental spot to draw panchanama, the said Tempo was not there in the accidental spot.
14. But, based on the above said oral version of P.W.1 and P.W.3 coupled with the contents of Ex.P.1 to Ex.P.7, Ex.P.10 and Ex.P.14, it cannot be believed, accept and come to the conclusion that, due to the very high speed, rash and negligent manner of driving of the offending Tempo bearing Registration No.TN-70-D-1803 by its driver only itself, the said road traffic accident was taken place and there was no negligence on the part of the Petitioner in the said road traffic accident, as, it is clearly found from the contents of Ex.P.4 Spot Hand Sketch and Ex.P.5 Charge Sheet that, to some extent, the negligence is attributed on the part of the Petitioner also, which 26 MVC NO.4818/2013 SCCH-7 is clear from the following discussion. Furthermore, the P.W.1, in his cross-examination has clearly stated that, on 02.08.2013 at the time of accident, he was alone walking on the road and the contents of Ex.P.4 Spot Hand Sketch are true and correct and there was no pedestrian cross or signal in the accidental spot. Further, the P.W.3, who is an Investigated Officer, has also clearly stated in his cross-examination that, the Point Police, who was on duty on the area of accidental spot had informed him about the accident through phone and he has recorded the statement of Anantharaj, who is an eye witness as on the date of accident itself at 4.30 p.m. More so, the Respondent No.2 has examined its Manager-Legal Department as R.W.1, who has stated in his examination-in-chief that, as per the Police documents, in particularly, the complaint dated 02.08.2013, by the Co-Employer of the Petitioner, being not an eye witness, clearly goes to prove the discrepancies in regard to the involvement of the insured medium goods vehicle Tempo bearing Registration No.TN-70-D-1803, wherein, as per the medical records, accidental injuries caused to the Petitioner was some unknown vehicle. But, it is clear from the Police documents that, the offending Tempo bearing Registration No.TN-70-D-1803 is very much involved in the said road traffic accident.
15. It is a specific defence of the Respondent No.1 that, the unknown vehicle caused the accident. In this regard, the P.W.2, has stated in his cross-examination that, as per Ex.P.15 Case Sheet, the Petitioner come to their Hospital on 02.08.2013 27 MVC NO.4818/2013 SCCH-7 at around 6.30 p.m., and Dr.Sangram had written Trauma History Sheet, which is available in Ex.P.15 Case Sheet and the brother of the Petitioner, namely, Prakash accompanied with the Petitioner at the time of first visit to their Hospital as per the Ex.P.15 Case Sheet and when the Petitioner was come to their Hospital, he was conscious and medico legal case is registered in the Hospital relating to the Petitioner and in Ex.R.1, which is a medico legal case register relating to their Hospital, which is available in Ex.P.15 Case Sheet, it is only mentioned as RTA and it is mentioned in the said consultation record that, on examination, the Petitioner had road traffic accident hit by some vehicle (unknown). The said portion is marked as Ex.P.15(a). In this regard, the P.W.2 has further stated that, the said information is given either by the patient or person or who accompanied with the patient. But, only based on the said evidence elicited from the mouth of P.W.2 by the Respondent No.1 itself, it cannot be come to the conclusion that, the unknown vehicle caused the accident to the Petitioner and not the offending TATA 1109 Tempo bearing Registration No.TN-70- D-1803, which is clear from the following discussions. More so, the R.W.1 has clearly stated in his examination-in-chief that, only based on Ex.P.15 Case Sheet, they have taken such defence that, the vehicle hit to Petitioner is an unknown vehicle.
16. The contents of Ex.P.1 F.I.R. and Ex.P.2 Complaint clearly disclosed that, the Traffic Controller had lodged Ex.P.2 Complaint before the Electronic City Traffic Police as against the driver of the Tempo bearing Registration No.TN-70-D-1803 by 28 MVC NO.4818/2013 SCCH-7 alleging that, on 02.08.2013 at about 2.45 p.m., the said offending TATA 1109 Tempo bearing Registration No.TN-70-D- 1803 was proceeding with very high speed, rash and negligent manner on the Service Road, in front of Anugraha Hotel, Hosur Road, Konappana Agrahara, Bangalore, towards Electronic City and dashed to the Petitioner suddenly and due to the said impact, the Petitioner had sustained grievous injuries on his head and he was not in a position to speak and he was shifted to Blossom Hospital, Bommanahalli for treatment and as such, he prayed to take necessary legal action as against the driver of the TATA 1109 Tempo bearing Registration No.TN-70-D-1803 and based on the said Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the said offending vehicle for the offences punishable under Section 279 and 337 of IPC and Section134 (a & b) and Section187 of IMV Act under Crime No.143/2013. It is also clear from the contents of Ex.P.1 F.I.R. and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 complaint. No doubt, it is mentioned in Ex.P.2 Complaint that, at the time of accident, the Petitioner was standing to cross the road. But, the other documents produced by the Petitioner, which are discussed below, clearly disclosed that, at the time of accident, the Petitioner was crossing the road, wherein, there was no pedestrian cross or zebra cross.
17. The contents of Ex.P.3 Spot Panchanama and Ex.P.3 Spot Hand Sketch clearly disclosed that, though the said alleged accident was taken place due to the very high speed, rash and 29 MVC NO.4818/2013 SCCH-7 negligent manner of driving of the offending TATA 1109 Tempo bearing Registration No.TN-70-D-1803 by its driver, at the time of accident, the Petitioner was crossing the road about 4 feet from the edge of the road and there was no pedestrian cross or zebra cross in the said accidental spot to cross the pedestrian and where there was no pedestrian or zebra cross, the Petitioner was crossing the road at the time of accident. From this, it is made crystal clear that, there is contributory negligence attributed on the part of the Petitioner in crossing the road, where there is no zebra cross or pedestrian cross. Further, the P.W.1 in his cross-examination has clearly stated that, the contents of Ex.P.4 Spot Sketch are true and correct and there was no pedestrian cross or signal in the accidental spot.
18. The contents of Ex.P.5 Charge Sheet further clearly disclosed that, at the time of accident, the Petitioner was crossing the road and at that time, the offending TATA 1109 Tempo bearing Registration No.TN-70-D-1803 came in very high speed, rash and negligent manner and dashed to the Petitioner suddenly and due to which, the Petitioner fell down and had sustained grievous injuries and the driver of the said offending Tata Tempo left the offending vehicle in the spot itself and ran away from the accidental spot and the said accident was taken place on the Service Road, near Anugraha Hotel, Hosur Road, Konappana Agrahara, Bangalore and the driver of the said offending vehicle left the accidental place by living the offending vehicle in the spot itself and without giving any treatment to the Petitioner and without informing to the nearest Police station 30 MVC NO.4818/2013 SCCH-7 about the said accident and as such, after thorough investigation, the Investigating Officer has filed the charge sheet as against the driver of the said offending TATA 1109 Tempo bearing Registration No.TN-70-D-1803 for the offences punishable under Section 279 and 338 of IPC and Section134 (a & b) and Section 187 of IMV Act. It is also clear from the contents of Ex.P.5 Charge Sheet that, at the time of accident, the Petitioner was crossing the road, wherein, there was no pedestrian cross or zebra cross or no provision for crossing the road for the pedestrians.
19. The contents of Ex.P.6 Wound Certificate discloses that, in the said road traffic accident, the Petitioner had sustained right clavicle fracture, head injury and multiple soft tissue injury on the face, which are grievous in nature. The same has also been clearly mentioned in Ex.P.7 Discharge Summary, which has been issued by the same Hospital, i.e., Sparsha Hospital. From this, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained three grievous injuries. It is also clear from the contents of Ex.P.7 Discharge Summary that, by admitting as an inpatient from 02.08.2013 to 05.08.2013, i.e., for 4 days, the Petitioner took treatment to the said accidental injuries at Sparsha Hospital. The nature of said injuries and line of treatment also clear from the contents of Ex.P.6 Wound Certificate, Ex.P.7 Discharge Summary, Ex.P.10 Laboratory Reports and Ex.P.14 X-ray films.
31 MVC NO.4818/2013SCCH-7
20. From the above said discussions, it is made crystal clear that, when the Petitioner was crossing the road, the said road traffic accident was taken place due to very high speed and rash and negligent manner of driving of the offending TATA 1109 Tempo bearing Registration No.TN-70-D-1803 by its driver and the said offending Tempo is very much involved in the said road traffic accident, wherein the Petitioner had sustained three grievous injuries and when the said accident was taken place and when the Petitioner was crossing the road at the time of accident, which is 4 feet away from the edge of the road and the negligence is also attributed on the part of the Petitioner, which is clear from the above said material Police documents. Further, only based on the trauma history sheet, it is available in Ex.P.15 Case Sheet, which has been produced by the P.W.3, the Respondent No.2 has taken the defence that, the unknown vehicle caused the accident and not the offending TATA Tempo. In this regard, the R.W.1 has clearly stated in his cross- examination that, except Ex.P.15, they have no other documents to show that, the vehicle hit to Petitioner is an unknown vehicle and their Company has not conducted investigation about the alleged accident. Therefore, the said defence taken by the Respondent No.2 cannot be believed and accept. However, it is clear from the above said Police and medical documents that, when the Petitioner was crossing the road, the said road traffic accident was taken place, wherein, he had sustained three grievous injuries and based on the said material evidence, this Tribunal has come to the conclusion that, there is contributory negligence is also attributed on the 32 MVC NO.4818/2013 SCCH-7 part of the Petitioner to some extent. By considering the distance from the edge of the road relating to the Petitioner, who was crossing the road, at that time of accident, this Tribunal held that, there is 25% contributory negligence on the part of the Petitioner and remaining 75% contributory negligence is on the part of the driver of the offending TATA 1109 Tempo bearing Registration No.TN-70-D-1803. Accordingly, I answered Issue No.1 in the Affirmative.
21. ISSUE NO.2 :- The Petitioner has not produced any authenticated documents to consider his age at the time of accident. Ex.P.1 F.I.R and Ex.P.8 Medical Bills disclosed that, at the time of accident, the Petitioner was 40 years old and Ex.P.5 Charge sheet, Ex.P.6 Wound Certificate, Ex.P.7 Discharge Summary and Ex.R.1 Medico Legal Case register disclosed that, at the time of accident, the Petitioner was 36 years old. Since, there is discrepancies in mentioning the age of the Petitioner in the said documents, based on the relevant medical documents and charge sheet, this Tribunal held that, at the time of accident, the Petitioner was 36 years old at the time of accident. Hence, the age of the Petitioner is considered as 36 years at the time of accident.
22. The P.W.1 has stated that, at the time of accident, he was working as a driver at BMTC and drawing a salary of Rupees 22,314/- per month. In this regard, the Petitioner has produced Ex.P.11 Salary Certificate, Ex.P.12 Certificate dated 24.02.2014 and Ex.P.13 Certificate dated 24.02.2014 issued by 33 MVC NO.4818/2013 SCCH-7 his employer. Ex.P.11 Salary Certificate is relating to the Petitioner for the month of July 2013, which discloses that, at the time of accident, the Gross Salary of the Petitioner is of Rupees 22,314-96 and Net Salary is of Rupees 15,958/- and he was working as a BMTC Driver at the time of accident. The contents of Ex.P.12 and Ex.P.13 Certificates issued by the employer of the Petitioner clearly disclose that, after the accident, the Petitioner was on leave and the medical expenses are not reimbursed. Since, the said Ex.P.11 to 13 are relevant and authenticated documents issued by the employer of the Petitioner, based on the said material documents, it can be safely held that, at the time of accident, the Petitioner was working as a driver at BMTC and he was drawing Net Salary of Rupees 15,958/-. Hence, the income of the Petitioner is considered as Rupees 15,958/- at the time of accident.
23. The P.W.1 has stated that, in the Hospital, suturing of the forehead and nasal wound laceration was done with local anesthesia and he was discharged with an advise to take complete bed rest and attend the Hospital for periodical check up and as per the advice he was regularly attending the Hospital for periodical check up once in 4 days and accordingly, he attended the Hospital for about 15 times.
24. Based on the contents of Ex.P.6 Wound Certificate and Ex.P.7 Discharge Summary, Ex.P.10 Laboratory Reports, Ex.P.14 X-ray films and Ex.P.15 Case sheet, this Tribunal has already come to the conclusion that, in the said road traffic 34 MVC NO.4818/2013 SCCH-7 accident, the Petitioner had sustained injuries, i.e., fracture of right clavicle, head injury, multiple soft tissue injury on face, forehead and nasal i.e., three grievous injuries, which are fracture and by admitting as an inpatient from 02.08.2013 to 05.08.2013, i.e., for 4 days, he took treatment to the said accidental injuries at Sparsha Hospital. It is already held by this Tribunal that, at the time of accident, the Petitioner was working as a driver at BMTC. The contents of Ex.P.12 Certificate issued by employer of the Petitioner clearly discloses that, the Petitioner was on Earned Leave from 04.08.2013 to 23.08.2013, i.e., for 20 days, Half Pay Leave from 24.08.2013 to 18.09.2013, i.e., for 26 days and Leave Without Pay from 19.09.2013 to 22.10.2013. From this, it is made crystal clearly that, after the accident, the Petitioner could not attend his duty for 80 days. It is clearly mentioned in Ex.P.7 Discharge Summary that, during the course of treatment, suturing of the left 1st web space laceration done under local anesthesia on 02.08.2013. Wound debridement + suturing of the forehead + nasal would laceration suturing done under local anesthesia on 03.08.2013 and conservative management and POP Slab applied for fracture 3rd metatarsal. From this material evidence, it is made crystal clear that, since the Petitioner had sustained grievous injuries, after discharge from the Hospital, the Doctors, who have treated the Petitioner had advised the Petitioner to take follow-up treatment and the injuries sustained by the Petitioner in the said road traffic accident required regular follow-up treatment and as such, by applying required leave, the Petitioner took treatment and follow-up treatment to the 35 MVC NO.4818/2013 SCCH-7 said accidental injuries from 02.08.2013 to 22.10.2013. Therefore, there are merits in the evidence of follow-up treatment taken by the Petitioner in taking complete bed rest and periodical check-up.
25. The P.W.1 has stated that, the said injuries have caused him permanent disabilities and even now he is taking treatment for head injury and he is not in a position to lift weight in view of the fracture of right clavicle. He has further stated that, he is experiencing severe pain and he is also getting severe headache due to the head injury and he is consulting neurologist and taking treatment and the injuries over the forehead, formed an ugly appearance and disfiguration.
26. The Petitioner has also examined the Orthopedic Surgeon at Medico Legal Consultant in the Sparsh Hospital as P.W.2, who has stated in his examination-in-chief that, the Petitioner was reviewed on 27.08.2014 for assessment of disability and he had complains of unable to lift weights, difficulty in moving left shoulder. He has further stated that, the Petitioner was examined clinically and assessment of disability was done as per the Central Government Notifications. By considering the mobility component, stability component, coordination activities and additional points relating to arm component and hand component in respect of upper limb of the Petitioner, the P.W.2 has opined that, the total disability of the arm is 18%. The P.W.2 has produced Ex.P.15 Case Sheet and Ex.P.16 X-ray films 2 in numbers.
36 MVC NO.4818/2013SCCH-7
27. But, based on the above oral version of P.W.1 and P.W.2 coupled with the contents of the above said medical documents, it cannot be believed and accept that, the Petitioner is suffering from disability of the arm of 18%, as, the P.W.2 in his cross-examination has clearly stated that, there is no significant abnormality in the brain as per Ex.P.10 Laboratory Reports and the Petitioner treated conservatively in respect of fracture of right clavicle and he was discharged with suitable condition as per Ex.P.7 Discharge Summary. It is pertinent to note here that, the Discharge Summary issued by Blossom Multi Specialty Hospital, wherein, the Petitioner had taken initial treatment, which is available in Ex.P.15 Case Sheet, discloses that, the Petitioner was discharged as against medical advise. The same has been clearly identified by the P.W.2 in his cross-examination. Further, the P.W.2 is not a treated Doctor and in this regard, he has stated that, Dr.Sangram had treated the Petitioner. Even, the Petitioner did not care to examine the treated Doctor. Furthermore, the P.W.2 has stated in his cross- examination that, he does not know the avocation of the Petitioner. Furthermore, the Petitioner has not produced any authenticated documents issued by his employer to show that, after the accident, he is unable to do the driving work and as such, his employer not allotting the duty of driver to him. Furthermore, the P.W.1 in his cross-examination has clearly stated that, now also he is working as a driver in BMTC Depot- 25 and now his Basic Pay is Rupees 12,110/- per month. He has further clearly admitted that, the salary is increased after the accident. From this, it is made crystal clear that, even after 37 MVC NO.4818/2013 SCCH-7 the accident, the Petitioner has been continuing the same job as a driver and his salary is increased from time to time. By considering all these material facts and evidence, this Tribunal feels that, in the said road traffic accident, though the Petitioner had sustained three grievous injuries, i.e., fractures, due to the said accidental injuries, the Petitioner is suffering from disability to some extent, which is 10%, which is believable and acceptable one and not 18% as stated by the P.W.2. Hence, it is held that, due to the accidental injuries, the Petitioner is suffering from disability of 10%.
28. As this Tribunal has already come to the conclusion that, the Petitioner is suffering from disability of 10%. This would certainly come in the way of future life of the Petitioner. But, that cannot be reduced the future income of the Petitioner, as, the P.W.1., who is the Petitioner has clearly stated in his cross-examination that, since 8 years, he has been working as a driver in BMTC and now also, he is working as a driver in BMTC Depot-25 and now his Basic Pay is Rupees 12,110/- per month and the salary is increased after the accident. Therefore, the income of the Petitioner cannot be reduced in view of the said extent of 10% disability. Therefore, the Petitioner is not entitled for future loss of income arising out of the disability of 10%.
29. As per Ex.P.6 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained 3 grievous injuries. The Petitioner was in the Hospital as an inpatient from 02.08.2013 to 05.08.2013, i.e., 4 days. Due to the said injuries, 38 MVC NO.4818/2013 SCCH-7 the Petitioner could have definitely suffered a lot of pain and agony. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 50,000/- towards pain and suffering.
30. As it is already observed that, the age of the Petitioner was 36 years. He has to lead remaining his entire life with 10% disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 10,000/- towards loss of amenities of life to the Petitioner.
31. The Petitioner had sustained 3 grievous injuries and he was in the Hospital as an inpatient for 4 days. As per Ex.P.12 Certificate dated 22.04.2014, the Petitioner was on Earned Leave from 04.08.2013 to 23.08.2013, i.e., for 20 days. During the said Earned Leave period, the Petitioner was received salary from his employer. Further, as per Ex.P.12 Certificate, the Petitioner was on half pay leave from 24.08.2013 to 18.09.2013, i.e., for 26 days and during the said period, the Petitioner had received salary of Rupees16,805/- and he was on leave without pay from 19.09.2013 to 22.10.2013, i.e., for 34 days. From this, it is made crystal clear that, after the accident, the Petitioner was taken half pay of Rupees16,805/- for a period of 26 days and he was not taken any salary for a period of 34 days. Due to the accidental injuries itself, the Petitioner had taken such kind of leave from 04.08.2013 to 22.08.2013. If the Petitioner had surrendered the said earned leave for the period from 04.08.2013 to 23.08.2013, he could get encashment.
39 MVC NO.4818/2013SCCH-7 Therefore, that can be compensated. Hence, the Petitioner is entitled for the salary from the period of earned leave from 04.08.2013 to 23.08.2013, i.e., for 20 days, remaining half pay for the period from 24.08.2013 to 18.09.2013, i.e., for 26 days and full pay for the period from 19.09.2013 to 22.10.2013, i.e., for 34 days. As this Tribunal has already come to the conclusion that, the at the time of accident, the Net Salary of the Petitioner was Rupees15,958/- per month. By calculating, the Petitioner is entitled for a sum of Rupees 10,638-66 (Rs.15,958/- X 20/30) for a period from 04.08.2013 to 23.08.2013, a sum of Rupees 6,915-13 (Rs.15,958/- X 26 X 1 / 30 X 2) for a period from 24.08.2013 to 18.09.2013 and a sum of Rupees 18,085-73 (Rs.15,958/- X 34/30) for a period from 19.09.2013 to 22.10.2013, in total, Rupees 35,639-52. Therefore, the Petitioner is entitled for the said deprived income of Rupees 35,639-52 towards loss of income during the laid up period, which is rounded off Rupees 35,640/-.
32. The P.W.1 has stated that, he has spent nearly Rupees 1 lakh towards medical expenses. But, the Petitioner has produced Ex.P.8 Medical Bills 34 in numbers, which is amounting of Rupees 80,186/- and Ex.P.9 Medical Prescriptions 10 in numbers. The Petitioner has produced Ex.P.13 Certificate dated 24.02.2014 issued by his employer, which disclosed that, the Petitioner has not availed the medical reimbursement facility in respect of the medical expenses incurred by him for the treatment of accidental injuries, which was taken place on 02.08.2013. From this, it is made crystal 40 MVC NO.4818/2013 SCCH-7 clear that, the Petitioner has not taken medical reimbursement facility from his employer. The Petitioner has taken treatment at Sparsh Hospital, wherein, he was taken treatment as an inpatient 02.08.2013 to 05.08.2013, i.e., 4 days and regularly taken follow-up treatment as per the advise of the Doctors from 06.08.2013 till 22.10.2013. Considering the nature of the injuries and line of treatment given to the Petitioner and also length of treatment and leave, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 80,186/- to the Petitioner.
33. The P.W.1 has stated that, he is still under treatment. But, the P.W.2 has not stated anything about the future medical treatment and its expenses to be taken by the Petitioner. Further, the Petitioner is working as a driver at BMTC and as such, admittedly he is having a medical reimbursement facility and as such, if the Petitioner has taken any future medical treatment to the said accidental injuries in future course of time, it can be reimbursed by his employer. Therefore, the Petitioner is not entitled for any compensation towards future medical expenses.
34. As the Petitioner was taken treatment as an inpatient for 4 days, it is necessary to award a sum of Rupees 2,000/- towards conveyance charges, Rupees 2,000/- towards attendant charges and Rupees 3,000/- towards food, nourishment and diet charges etc., 41 MVC NO.4818/2013 SCCH-7
35. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and sufferings Rs. 50,000-00
2. Loss of amenities of life Rs. 10,000-00 Loss of income during laid
3. Rs. 35,640-00 up period
4. Actual medical expenses Rs. 81,186-00
5. Conveyance Rs. 2,000-00
6. Attendant Charges Rs. 2,000-00 Food, Nourishment &
7. Rs. 3,000-00 Diet charges TOTAL Rs. 1,82,826-00
36. In all, the Petitioner is entitled for total compensation of Rupees 1,82,826/- along with interest at the rate of 6% per annum on the above said sum from the date of Petition till payment.
37. While answering Issue No.1, this Tribunal has come to the conclusion that, there is 75% contributory negligence on the part of the driver of the TATA 1109 Tempo bearing Registration No.TN-70-D-1803 and remaining 25% contributory negligence is on the part of the Petitioner in the said road traffic accident, wherein, the Petitioner had sustained three grievous injuries. The very involvement of the offending TATA 1109 Tempo bearing Registration No.TN-70-D-1803 as well as its driver are clearly proved by the Petitioner. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.1 is an insurer and the Respondent No.2 is an 42 MVC NO.4818/2013 SCCH-7 owner of the offending TATA 1109 Tempo bearing Registration No.TN-70-D-1803. The R.W.1 has clearly stated in his examination-in-chief that, the Respondent No.1 had issued Policy bearing No.10003/31/14/077897 in favour of the Respondent No.1 in respect of the vehicle Medium Goods Vehicle TATA 1109 Tempo bearing Registration No.TN-70-D- 1803, valid from the period from 01.06.2013 to 31.05.2014. The same has also been stated by the Respondent No.1 in its written statement. From this, it is made crystal clear that, at the time of accident, the Respondent No.1 was an insurer and Respondent No.2 was a registered owner of the offending TATA 1109 Tempo bearing Registration No.TN-70-D-1803 and its insurance policy was valid, which covers the date of accident. There is no allegation leveled as against the driver of the offending TATA 1109 Tempo bearing Registration No.TN-70-D- 1803 in Ex.P.5 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive such clause of vehicle. The violation of the terms and conditions of the admitted insurance policy by the Respondent No.2, is not proved by the Respondent No.1. The very contents of Ex.P.11 Salary Certificate and Ex.P.12 and Ex.P.13 Certificates issued by the employer of the Petitioner clearly disclosed that, at the time of accident, the Petitioner was working at Bangalore. Hence, the Respondent No.1 being an insurer and Respondent No.2 being a registered owner of the offending TATA 1109 Tempo bearing Registration No.TN-70-D-1803 are jointly and severally liable to pay the above said compensation and interest to an extent of 75% to the Petitioner. Since, the Respondent 43 MVC NO.4818/2013 SCCH-7 No.1 is an insurer, it shall indemnify the Respondent No.2. In view of the above reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.1 are applicable to the present facts and circumstances of the case on hand, to some extent. Hence, Issue No.2 is answered accordingly.
38. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, is hereby partly allowed with costs.
The Petitioner is entitled for total compensation of Rupees 1,82,826/- with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondent No.1 to an extent of 75%.
The Respondent No.1 shall deposit the said 75% of compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of the said 75% compensation and interest, entire amount shall be released in the name of Petitioner 44 MVC NO.4818/2013 SCCH-7 through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees
1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 18th day of September, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. Srinivas Rathod
P.W.2 : Dr. Nagaraj.B.N.
P.W.3 : B.Ranganath
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Panchanama
Ex.P.4 : True copy of Spot Sketch
Ex.P.5 : True copy of Charge Sheet
Ex.P.6 : True copy of Wound Certificate
Ex.P.7 : Discharge Summary
Ex.P.8 : Medical Bills (34 in nos.)
45 MVC NO.4818/2013
SCCH-7
Ex.P.9 : Medical Prescriptions (10 in nos.)
Ex.P.10 : Laboratory Reports
Ex.P.11 : Salary Certificates
Ex.P.12 : Certificate dated 24.02.2014 issued by
Employer
Ex.P.13 : Certificate dated 24.02.2014 issued by
Employer
Ex.P.14 : X-ray Films (11 in nos.)
Ex.P.15 : Case Sheet
Ex.P.16 : X-ray Films (2in nos.)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Jayanth Inamdar
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Medico Legal Case Register available in Ex.P.15 Case Sheet (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.