Bangalore District Court
William @ William Christoper vs Sri. Chidanand on 4 April, 2018
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 4th DAY OF APRIL 2018
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No. 3246/2016
Petitioners: 1. William @ William Christoper,
S/o. R.Mari Rangegowda,
Aged about 20 years,
Since he is mentally disabled
Rep. by Natural Guardian
and Father Sri Mari Rangegowda,
S/o. Rangaiah,
Aged about 48 years,
Residing at NO.49/56,
I Main, 14th cross,
Rameshnagar,
Bangalore -37.
(By Sri P.R., Advoate)
- V/s -
Respondents: 1. Sri. Chidanand,
S/o. Shivanna,
Residing at No.502, I Cross,
Near SBI Bank,
Thimmareddy Colony,
Jeevanabhimanagar,
Bangalore -560 075.
(Owner of the Indica Car bearing
SCCH-1 2 MVC No.3246/2016
Reg.No.KA-44-4049)
... Exparte
2. The Shriram General Insurance
Co. Ltd.,
No.5/4, III Floor, S.V.Arcade,
Bilekalli Main Road,
Bannerghatta Road,
II AM Post,
Bangalore -560 076.
(Insurance Policy
No.10003/31/15/632368
Valid from 27.7.2015 to
13.3.2016)
(By Sri G.S., Advocate )
3. M/s.U.S.Express South Pvt.
Ltd.,
No.102/IF, Krishna Chambers,
No.20/21, V Cross,
Airport Road,
Bangalore .
(owner of the Mahendra
Maximo Vehicle bearing
Reg. NO.KA-03-AA-3526)
(By Sri S.S., Advocate )
4. The Tata Aig General Insurance
Co.Ltd.,
No.69, II Floor, JP & Devi
Jambukeshwara Arcade,
Millers Road,
Bangalore -52.
(Insurance Policy
No.010077826802
SCCH-1 3 MVC No.3246/2016
Valid from 07.06.2015 to
06.06.2016)
(By Sri. J.N.R., Advocate )
*******
JUDGMENT
The Guardian of the petitioner has filed this petition under Section 166 of the of the Motor Vehicles Act, 1989 seeking compensation of Rs.40,00,000/- for the injuries sustained by his son in the road traffic accident.
2. Brief facts of the case are that:-
It is the case of the guardian of the petitioner that on 16.10.2015 at about 2.35 a.m. when the petitioner was riding the motor cycle bearing No. KA-02-EA-4066 on Old Airport main road near Leela Palace, slowly and cautiously observing the traffic rules, at that time all of a sudden, the driver of Indica car bearing No. KA-44-4049 and Mahendra Maximo bearing No. KA-03-AA-3526 driven by its drivers in a rash and negligent manner dashed against the petitioner's motor cycle from behind. Due to the tremendous impact, the petitioner fell SCCH-1 4 MVC No.3246/2016 down from the motor cycle and sustained grievous injuries all over the body.
3. Immediately after the accident, petitioner was shifted to Manipal hospital, wherein he took treatment as an inpatient from 16.10.2015 to 11.12.2015. X-rays revealed that the petitioner sustained moderate acute subarachnoid Haemorrhage, left subdural haemotoma, FTP contusion, fracture of skull, brain injury and other injuries. During the course of treatment petitioner underwent BURR Hole ICP monitoring , decompressive craniotomy, tracheostomy (INSR). The petitioner was discharged from the hospital with an advise to continue treatment and to undergo periodical review for every week and now the petitioner is taking treatment as an out patient. Petitioner has spent Rs.15,00,000/- towards medical expenses, conveyance, food and nourishment. The petitioner has to incur future medical expenses also.
4. It is further contended that, petitioner was a painter by profession and was earning Rs.15,000/-p.m. Due to the unfortunate accident, the petitioner is unable to walk, sit, squat, climb staircase or do any work as he was doing prior to the accident and he is permanently disabled. The accident was occurred solely due to the SCCH-1 5 MVC No.3246/2016 rash and negligent driving of the driver of the Indica car bearing No. KA-44-4049 and Mahendra Maximo bearing No. KA-03-AA-3526 . The respondent NO.1 being the owner and respondent No.2 being the insurer of the indica car and 3rd respondent being the owner and 4th respondent being the insurer of Mahendra Maximo bearing No. KA- 03-AA-3526 are jointly and severally liable to pay the compensation to the petitioner.
5. In pursuance of this claim petition, this Court has issued notices against the respondents. Respondent No.1 has not chosen to appear before the Court and he was placed exparte. Respondent No.3 has appeared before the Court through his counsel and has not chosen to file written statement.
6. Respondents Nos. 2 and 4 have appeared before the Court through their respective counsels and have filed written statements separately.
7. Respondent No.2 has filed written statement denying the petition averments. This respondent has admitted the issuance of policy in respect of the car bearing No. KA-44-4049 and the liability if any is subject to the terms and conditions of the policy. It is further SCCH-1 6 MVC No.3246/2016 contended that this respondent reserves its right to amend its statement of objection and also to take over the defence of the insured in the event of the owner does not contest the proceedings under section 170 of M.V.Act.
8. This respondent further denied the date, time and mode of accident, age , avocation and income of the petitioner, injuries sustained by the petitioner , expenses incurred by him and permanent disability sustained by him. The compensation claimed by the petitioner is excessive and exorbitant .
9. It is further contended that there is no negligence on the part of the driver of the car , the petitioner himself rode the motor cycle in a rash and negligent manner and dashed against the Mahindra Maximo vehicle bearing No. KA-03-AA-3526 and driver of the indica car bearing No. KA-44-4049 is not responsible for the alleged accident and the accident is taken place due to negligence of the petitioner and the driver of the Mahindra Maximo vehicle , hence, petition is not maintainable against this respondent.
10. It is the contention of the petitioner that driver of the car had no driving licence as on the date of accident and owner of the vehicle SCCH-1 7 MVC No.3246/2016 has committed breach of terms and conditions of the policy by allowing him to drive the vehicle as on the date of accident. It is further contended that the said car had no valid permit and fitness certificate to ply in the public place, hence, it is clear violation of the policy terms and conditions. It is further contended that the owner has not complied the statutory obligation under section 134(c) of M.V.Act and the concerned police have not complied the provisions of section 158(6) of M.V.Act. Hence, prays to dismiss the petition.
11. The fourth respondent has filed written statement denying the petition averments. This respondent has admitted the issuance of policy in respect of Mahendra Jeep and the liability if any is subject to the terms and conditions of the policy and subject to confirmation of 64VB of Insurance Act 1938.
12. It is contended that as per the medical records after alleged accident the petitioner was shifted to Manipal hospital for treatment and as per history of the accident recorded in medical records i.e., MLC it is mentioned as "alleged history of R.T.A. when patients bike colluded with a tempo traveler on Old Airport Road, near MHB at 2.40 a.m.". It shows that in the alleged accident insured vehicle was SCCH-1 8 MVC No.3246/2016 not at all involved in the alleged accident some unknown vehicle had caused the alleged accident but these facts were suppressed by the petitioner with the help of Police and insured fixed false case against this respondent. Hence, claim petition may be dismissed against this respondent.
13. It is contended that as per section 134(c) of M.V.Act, it is mandatory duty of the owner to furnish the particulars of policy, date, time and place of accident, particulars of the injured and the name of the driver and particulars of driving licence and the owner has not complied with the statutory demand. Further contended that as per section 158(6) of M.V.Act, 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 information, but the concerned Police have failed to forward the documents and not complied with the statutory demand, in the absence of such notice, the Police in collusion with the insured have filed a false case. The whole facts and situation concerning the alleged accident are manipulated for the convenient of the petitioner to get the compensation, the petitioner , SCCH-1 9 MVC No.3246/2016 police and the third respondent colluded and created false theory against this respondent to get the compensation.
14. It is the contention of this respondent that the third respondent entrusted his Mahendra Jeep to his driver who had no driving licence , badge/endorsement to drive the same and the owner has violated the terms and conditions of the policy and this respondent is not liable to indemnify the respondent/owner. Hence, prays to dismiss the petition.
15. Based on the pleadings this Court has framed the following common issues in both the cases:-
Issues
1. Whether the Petitioner proves that he sustained grievous injuries in a Motor Vehicle Accident that occurred on
16.10.2015 at about 2.35 a.m, on Old Airport Main Road, Near Leela Palace, Bangalore, within the jurisdiction of Airport Traffic Police Station on account of rash and negligent driving of the Indica Car Reg. No. KA-44-4049 and Mahindra Maximo Reg. No. KA-03-AA-3526 by its drivers ?
2. Whether the Respondents prove that the accident was occurred on account of negligent act of petitioner?
3. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
SCCH-1 10 MVC No.3246/2016
4. What order?
16. The guardian of the petitioner is examined as PW-1 and examined two more witnesses as PW-2 and 3 and has got marked Ex.P.1 to 20. The respondents have examined four witnesses as RW-1 to RW-4 and have got marked copy of the policy at Ex.R.1 to 11.
17. I heard the arguments of petitioner counsel and respondents No.2 and 4 counsels.
18. Having heard the arguments, based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) Issue No.1... In the Affirmative,
2) Issue No.2...In the negative
3) Issue No.3 ... Partly in the Affirmative,
4) Issue No.4... As per final order for the following:-
REASONS
19. Issue No.1 and 2 : These two issues are inter-connected to each other and taken up together for discussions in order to avoid repetitions.
SCCH-1 11 MVC No.3246/2016
It is the case of the guardian of the petitioner that on 16.10.2015 at about 2.35 a.m. when the petitioner was riding the motor cycle bearing No. KA-02-EA-4066 on Old Airport main road, near Leela Palace, slowly and cautiously observing the traffic rules, at that time all of a sudden, the driver of Indica car bearing No. KA-44-4049 and Mahendra Maximo bearing No. KA-03-AA-3526 driven by its drivers in a rash and negligent manner dashed against the petitioner's motor cycle from behind. Due to the tremendous impact, the petitioner fell down from the motor cycle and sustained grievous injuries all over the body.
20. On the other hand, it is the contention of the respondents NO.2 and 4 that the accident was occurred due to the sole negligence of the petitioner himself who rode the motor cycle in a rash and negligent manner.
21. In order to prove the case of the petitioner , the guardian of the petitioner is examined as PW-1 and he has reiterated the averments of the petition in his affidavit evidence. Apart from his oral evidence, he also relied upon FIR, mahazar, sketch, IMV report, SCCH-1 12 MVC No.3246/2016 charge sheet at Ex.P.1, 3,4 and 6. He was subjected to cross- examination.
22. In the cross-examination of PW-1, it is elicited that he has not witnessed the accident and his son was alone in the two wheeler at the time of accident. It is suggested that his son was not having driving licence at the time of accident and the said suggestion was denied. PW-1 admits that he has not given the complaint before the Police and the said road is two way and there is a road divider and he came to know the accident through Police. He admits that he know the contents of IMV report. Further admits that motor cycle belongs to him and R.C. was standing in the name of previous vendor. He admits that the front portion of motor cycle was damaged. It is elicited that he has not seen the damages of the indica car and hence, he cannot tell that the right side door was damaged. It is suggested that his son has driven the motor cycle in a rash and negligent manner and hence, the accident was occurred due to his negligence and the said suggestion was denied.
23. PW-1 was further cross-examined by the counsel for respondent No.4. In the cross-examination, it is suggested that, if the SCCH-1 13 MVC No.3246/2016 vehicle front portion is damaged and another vehicle back portion is damaged, in the normal circumstances, the vehicle which went and hit will sustained the front portion damages and the said suggestion was denied. It is elicited that he does not know about the contents of IMV Report that back portion of Mahindra Maximo vehicle was damaged. He claims that he cannot comment on the sketch since he has not witnessed the accident. He admits that if both the left side vehicle and right side vehicle came and hit the motor cycle, both the left and right portion of the motor cycle has to be damaged. Witness volunteers that the damage is sustained by the vehicle is of the same as mentioned.
24. The guardian of the petitioner in order to prove the negligence has examined one eye witness as PW-3. In his evidence, PW-3 says when petitioner was riding the motor cycle at that time Indica car and Mahindra Maximo was driven by its drivers in a rash and negligent manner dashed against the motor cycle and the accident was occurred solely due to this rash and negligent driving. In the cross-examination, he admits that the father of the petitioner has requested him to give evidence. He admits that Airport road is busy road and he was alone at that time and accident and accident was SCCH-1 14 MVC No.3246/2016 occurred opposite to the Hotel Leela Palace. It is suggested that the Tempo Traveller was also proceeding at the time of the accident and the same was denied. It is suggested that victim was not wearing helmet and the said suggestion was denied however, he admits that petitioner had sustained injury to his head and he did not take the injured to the hospital and he has not given any complaint to the Police. It is suggested that he is having acquaintance with the Police since he is doing the real estate business and the said suggestion was denied. It is further suggested that he is a witness in number of cases and he has verified the hospital records of the petitioner and these suggestions were denied. He categorically admits that in his direction there were 3 vehicles. Further suggestion was made that Indica car was not involved in the accident and Tempo Traveller caused the accident.
25. The counsel appearing for the respondent No.4 in the cross- examination elicited that tempo traveler is compared to Mahindra Maximo is big vehicle. He claims that he has given the details of the vehicle to the parents of the injured. It is suggested that the accident SCCH-1 15 MVC No.3246/2016 was not occurred due to the negligence of the driver of the tempo traveler and not Mahindra Maximo.
26. The respondent No.4 has examined the witness as RW-3 contending that in the M.L.C. it is mentioned that when patient's bike colluded with a tempo traveler, hence, 4th respondent, insured vehicle was not involved in the accident. He was subjected to cross- examination. In the cross-examination, he admits that he has engaged the services of the investigator only to collect the documents from the Police and no investigation was conducted by him. Further admits that he has not issued notice to the driver. He also admits that Police after the investigation have filed the charge sheet against the drivers of both the vehicles. He admits that there was no any delay in lodging the complaint. It is suggested that , in order to absolve liability he is giving false evidence before the Court and the said suggestion was denied.
27. Respondent No.2 Insurance Company has examined its Legal Officer as RW-4. In his evidence he contended that Indica car was not involved in the accident as per records. He was also subjected to cross-examination. In the cross-examination, he admits that they SCCH-1 16 MVC No.3246/2016 have conducted their own investigation through their Investigator. They have not produced the investigation report before the Court. It is elicited that the driver and owner have not given any statement in writing with their investigator. Further admits that insured has given the complaint stating that the accident was occurred due to the negligence of his driver and also Mahindra Maximo vehicle driver. But witness volunteers that in order to help the petitioner, the complaint was given, however, he categorically admits that Police have filed charge sheet against the drivers of both the vehicles. FIR was registered on the same day. It is suggested that the entire front portion of indica car was damaged and the same was denied. However, he claims that their insured has not claimed any own damages.
28. The respective counsels in their own arguments have contended that the M.L.C. discloses that the motor cycle was colluded with a tempo traveller and these vehicles are implicated.
29. On the other hand, the counsel appearing for the petitioner has contended that the petitioner has sustained severe head injury and he was in the hospital for a period of 2 months. PW-3 who is an eye SCCH-1 17 MVC No.3246/2016 witness to the accident categorically says that he has witnessed the accident and he also arrayed as CW-4 in the charge sheet.
30. The petitioner counsel in his argument, he has vehemently contended that though the respondents' have taken the defence of non- involvement of vehicle in the accident have not proved the same. Apart from that both oral and documentary evidence clearly discloses the negligence on the part of the drivers of both the vehicles who are responsible for the accident.
31. The counsel appearing for the petitioner in support of his contention he has relied upon the judgment reported in 2014 AIR SCW 1081( Lachoo Ram and ors Vs. Himachal Road, Transport Corpn.) and in this judgment the Apex Court held that mere involvement of bus of respondent Corporation in accident- cannot make respondent liable to pay compensation unless it is shown that accident was caused by rash and negligent act of bus driver.
32. The counsel also relied upon the judgment reported in 2012 AIR SCW 2241 ( Surinder Kumar Arora and another Vs. Dr.Manoj Bisla and others) wherein it is held that onus to prove act of rash and negligent driving by driver of vehicle was on claimants-failure to SCCH-1 18 MVC No.3246/2016 discharge, by adducing cogent evidence- rejection of claim filed by claimants-failure to discharge by adducing cogent evidence-rejection of claim filed by claimants under section 166 was proper.
33. The counsel also relied upon the judgment of Kerala High Court reported in 2012 ACJ 1370 (New India Assurance Co.Ltd. Vs.Pazhaniammal and others). In this judgment Kerala High Court held that negligence under section 166 but quality of negligence which a claimant has to establish is inferior -culpable negligence need not be proved. Both the rule in Rylands Vs. Fletcher and doctrine of res ipsa loquitur are applicable -satisfaction of the Court about existence of negligence is enough but it has to be proced whether production of charge sheet is prima facie sufficient evidence of negligence for purpose of claim under section 166 as held in coming to the conclusion that charge sheet against accused is filed by Poalice after due investigation; but if Tribunal finds charge sheet suspicious or collusive or any of the parties do not accept it, procedure of production of evidence may be adopted.
34. On the other hand, the respondent counsel though taken the defence that vehicles were not involved in the accident, they have not SCCH-1 19 MVC No.3246/2016 examined the drivers of the vehicles before the Court only the officials of the insurance company have been examined. They categorically admits that they have not witnessed the accident . Only taking the advantage of mentioning in the M.L.C. that the vehicles have colluded with the Tempo traveler, they have raised the false defence.
35. In the reply the respondents counsel have categorically contended that fraud and justice never dwell together. In support of their contentions, they have relied upon the citation reported in ILR 2014 Kar.3336 ( Branch Manager, Oriental Insurance Co.Ltd. Vs. Smt.Kempamma and others) and the respondent NO.4 counsel also relied upon the very same judgment. Both the Division Bench in this case held that Owner of the motor cycles colluded each other to dupe the Insurance Company. This is a clear cut case of self accident as the deceased himself fell down on account of skid of the motor cycle, while he himself was riding the motor cycle.
36. Respondent No.2 and 4 counsels have relied upon the judgment reported in 2010 ACJ 1667 ( Bajaji Allianz General Insurance Co.Ltd., Vs. B.C.Kumar and another) and in this judgment SCCH-1 20 MVC No.3246/2016 also the Single Judge of the Hon'ble High Court of Karnataka held that " document evidencing pleading guilty by driver was not marked in evidence and there is no legal evidence to support claimant's case that driver pleaded guilty-whether the Tribunal without examining other circumstances of the case and solely relying on the driver of the offending vehicle pleading guilty in criminal trial was justified in accepting the claim and allowing compensation and Hon'ble High Court of Karnataka held that Tribunal has to assess the evidence before it independent or any finding of the criminal Court.
37. Both the counsels have also relied upon the (2010 Kant. M.A.C. 256(Kant) (Veerappa and another Vs. Siddappa and another). In this judgment the Division Bench has held that when fraud has been committed with the insurer -Held-Insurer is not liable to indemnify the owner of the vehicle who has played fraud and not liable to pay any compensation to the claimants who are also party to the fraud.
38. Respondent No.2 counsel apart from the citation referred supra has relied upon the judgment of Apex Court in Civil Appeal No.3171/2009 ( North West Karnataka Road Transport Corporation SCCH-1 21 MVC No.3246/2016 Vs. Gourabai and ors.). In this case the Apex Court by taking into the material on record has come to the conclusion that the deceased has suffered head injury due to fall from the height of 8 to 10 feet of his own house.
39. The Counsel appearing for the respondent No.2 also relied upon the judgment passed in M.F.A. No.7102/2017 (Oriental Insurance Co.Ltd. Vs. Smt.Velliyamma and others) and while answering the point for consideration and it is not the case of the accident occurred on account of the rash and negligent driving of the bus and the same was on account of the assault and the wife of the deceased has categorically admitted that it is case of murder.
40. The Counsel for the respondent NO.2 also relied upon the unreported judgment of Hon'ble High Court of Karnataka passed in M.F.A. No.4313/2011 c/w.M.F.A. No.5284/2011(Bajaj Allianz General Insurance Co. Ltd.Vs. Anji @ Anjanappa and another and after appreciating the evidence allowed the appeal filed by the insurance company.
41. The respondent NO.2 counsel has relied upon the unreported judgment passed in M.F.A. NO.8526/2011 (G.Mohan Vs. SCCH-1 22 MVC No.3246/2016 Bajaj Allianz General Insurance Co.Ltd. and another). In this judgment it is held that the claimants are not in a position to explain why he did not lodge a complaint with the Police after 17 days after the accident having taken place and has not furnished any reason. The entire record would reveal beyond all reasonable doubt that the claimant who is victim of an accident involving some unknown vehicle has made an attempt to fix the vehicle belonging to 2nd respondent as the vehicle hit him.
42. The Counsel for the respondent NO.2 has further relied upon a judgment passed in M.F.A. No.6760/2011 (Bajaj Allianz General Insurance Co.Ltd. Vs. Sri S.Rajendran and another). In this judgment also after appreciating the evidence on record has held that records would clearly indicate manipulation from the time of accident till registering of the complaint. There is a dishonest attempt on the part of Police in creating the documents and exonerated the liability of the insurance company.
43. The counsel for the respondent No.2 has further relied upon a judgment passed in M.F.A. No.5331/2014 (Sri D.Govardhan Vs. Sathish Poojari and another) wherein it is held that complaint came to SCCH-1 23 MVC No.3246/2016 be filed after 22 days after the accident which is contrary to the evidence and claimant has failed to prove the occurrence of the accident due to rash and negligent riding of the motor cycle.
44. The counsel for the respondent NO.2 has relied upon the judgment reported in 2012(1) KCCR 260(B.Vijaya Kumar Vs. M.B.Mallikarjuna and others) wherein the Hon'ble High Court of Karnataka held that claimant fell from bullock cart-fabricated story to suit unjust claim.
45. He relied upon another judgment reported in ILR 2012 Kar.2689 (K.E.Basavarajappa Vs. Chandrappa and another). In this judgment the Single Bench Judge held that considering the facts on hand as Ex.R.2, case sheet reveals the earliest 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.
46. The counsel also relied upon the judgment reported in ILR 2015 Kar.401 (Mr.Vijay V. Shetty Vs. Mr.V.Sharada and others) wherein it is held that no evidence on record to show that the SCCH-1 24 MVC No.3246/2016 Appellant had sustained injuries in the Road Traffic Accident. There is no involvement of the two vehicles and the injuries are on account of the skid of his bike. The main contention of both the respondents NO.2 and 4 are that the vehicle was not involved in the accident and they have implicated the vehicle and it is nothing but fraud.
47. In keeping the contentions urged by both the petitioner counsel and respondent NO.2 and 4 counsels, this Court has to appreciate both the oral and documentary evidence. Admittedly the accident was taken place on 16.10.2015 at 2.35 a.m. and FIR which is marked as Ex.P.1 discloses that the complaint was given on the same day by the owner of the indica car stating that he was traveling in the said car and car was driven by his driver in a rash and negligent manner and motor cyclist was proceeding in the middle of the two vehicles and both the vehicle drivers drove the vehicle in a rash and negligent manner and indica car lightly touched the two wheeler handle and motor cycle rider lost his balance and fell down and left portion of the Mahendra Maximo vehicle touched to the two wheeler and action has to be taken against both the drivers. SCCH-1 25 MVC No.3246/2016
48. Witness who has been examined as RW-4 in his evidence, he admits that insured of their vehicle has given the complaint. Wound certificate further reveals that immediately after the accident injured was shifted to Manipal hospital at around 2.45 a.m. within 5 minutes of the accident. Police have also conducted mahazar in terms of Ex.P.3 and Ex.P.4 sketch also produced which clearly discloses that the motor cycle was proceeding in between the offending vehicles and complainant also specifically states that right portion of his indica car lightly touched the handle of the petitioner's vehicle and left portion of the Mahendra Maximo vehicle touched the motor cycle of the petitioner and to substantiate the same IMV report which is marked at Ex.P.5 clearly discloses that all the three vehicles were subjected to inspection and right side rear fender of the tata indica car was damaged and left side rear body there is a scratch mark on the Mahendra Maximo vehicle. This IMV report supports the case of the petitioner.
49. The Police after investigation have filed charge sheet against the drivers of the both the vehicles in terms of Ex.P.6. RW-4 also categorically admits that there was no delay in lodging the SCCH-1 26 MVC No.3246/2016 complaint. They have not disputed the very fact of damage caused to both the vehicle that too right portion of the car and left portion of Mahindra Maximo vehicle and there is no explanation on the part of respondent No.2 and 4 regarding damage is concerned and they have not examined the respective drivers of the vehicle before the Court who were the right persons to speak with regard to the negligence is concerned.
50. The respondents No.2 and 4 have examined their officials before the Court and they are not witnessed the accident. PW-3 who is an eye witness has categorically explained how the accident has taken place. Though an attempt is made by respondent No.2 and 4 counsels that PW-3 has not witnessed the accident nothing is elicited from his mouth except that he has not lodged the complaint and shifted the injured to the hospital but he categorically says when the parents of the injured came he left the spot. He has been arrayed as CW-4 in the charge sheet and he is not a stranger. It has to be noted that respondent No.2 and respondent No.4 taking the advantage of mentioning in the M.L.C. that " by colluding with the tempo traveler" an attempt is made to contend that both the vehicles were not involved in the SCCH-1 27 MVC No.3246/2016 accident and they were falsely implicated. The citation referred supra are not comes to the aid of respondent No.2 and 4 and in those cases, it is nothing but an implication of the vehicles. There was delay in lodging the complaint. Apart from that the injuries sustained in the house as well as the skid by their own vehicle and facts and circumstances of the case on hand is different from that of the facts and circumstances of the case which referred in the judgments above. Hence, I do not find any substance in the contention of respondents NO.2 and 4 regarding involvement of the vehicle and IMV report is specifically with regard to damage caused and very complaint averment substantiate and the same correlate to the evidence of PW-3 and also the averment of the complaint given by the injured i.e., occupant of the one of the vehicle involved in the accident. The only contention is that they have colluded each other and there is no rebuttal evidence to substantiate the same. Mere taking defence is not enough, same has to be proved by leading cogent evidence before the Court and the persons who took the injured to the hospital is none other than the occupants of the car. No doubt, the judgments supra says the Court has to assess the evidence independently and not influenced by the plea guilty made by the respective vehicles. In the SCCH-1 28 MVC No.3246/2016 case on hand also no dispute with respective drivers that they have pleaded plea guilty both oral and documentary evidence reveals the involvement of these vehicles in the accident. Further more, they did not maintain any distance between the vehicles and the rider of the motor cycle was proceeding in between the two vehicles. Both the vehicle came in contact with the motor cycle of the injured. Sketch and IMV report were not disputed that the damage caused to the left and right portion of the motor cycle by the offending vehicles and the drivers were not been examined before the Court. Hence, I answer issue No.1 in the affirmative and issue No.2 in the negative.
51. ISSUE No.3: It is the case of the guardian of the petitioner i.e., PW-1 that on account of the accident his son sustained grievous injuries. PW-1 in order to prove his case has produced wound certificate at Ex.P.2, which discloses petitioner has sustained head injury with SDH, SAH, FTP contusion and C.T. Scan of the Brain shows multiple skull bone fracture. Doctor has opined that the injury is grievous in nature. Ex.P.8 discharge summary discloses that the petitioner took treatment in the Manipal hospital from 16.10.2015 to 11.12.2015 i.e., for a period of 57 days. In the discharge summary it SCCH-1 29 MVC No.3246/2016 was diagnosed as petitioner sustained traumatic brain injury , SDH, SAH, FTP contusion, multiple skull bone fracture. Radiology investigations and C.T.Scan of the brain revealed moderate acute subarachnoid haemorrhage in right fronto temporal region and left fronto temporoparietal region (left>right), small interventricular blood within the fourth ventricle, shallow subdural haemoatoma extending along the left fronto parietotemporal cortex with maximum thickness of 5 mm with focal mass-effect on the adjacent cortex, small volume subdural haematoma is noted along the falx cerebri noted in left fronto parietal region, diffuse cerebral oedema causing mild compression on bilateral lateral ventricles . No subfalcine or tonsillar herniation, there is displaced comminuted fracture of the left frontal bone which is extending to high parietal bone with contralateral extension, there is a subgaleal haematoma along the left parietotemporal region. He was subjected to surgery of BURR hole ICP Monitoring (LNSR) done, Decompressive craniotomy (LNSR) done, Tracheostomy (LNSR) done.
52. In the cross-examination of PW-1, it is elicited that Dr.Praveen Gangi has treated his son. It is suggested that he has SCCH-1 30 MVC No.3246/2016 suffered only simple injuries and no fractures and the said suggestion was denied. It is suggested that Ex.P.8 is created in collusion with the doctor and the same was denied. It is elicited that now he is not able to speak and walk. It is suggested that he has filed false affidavit narrating the nature of the injuries as grievous injuries in para 4 of his affidavit and the said suggestion was denied. It is suggested that he is falsely claiming that he had spent an amount of Rs.10,00,000/- towards medication and the same was denied.
53. It is the case of the PW-1, that his son has sustained permanent disability due to the accidental injuries. In order to prove the disability sustained by the petitioner, he has examined the doctor as PW-2 and PW-2 in her affidavit she reiterated the nature of the injuries suffered by the petitioner and the treatment taken by him in the hospital as inpatient. C.T. Scan of brain showed subdural haematoma and intraventricular blood with diffuse cerebral edema. In view of persistently high ICP, he underwent left FTP decompressive craniectomy and evacuation of subdural haematoma followed by tracheostomy . He also underwent neuro rehabilation and supportive care. Gradually he was stable neurologically and hemodynamically SCCH-1 31 MVC No.3246/2016 stable. Petitioner was complaining of behavioural changes (restlessness, agitation), speech disturbance , left calvarial defect. His neurological disabilities are right hemiparesis with facial weakness, neurobehavioral and cognitive disability. He underwent a neurobehavioral and cognitive assessment by a neuropsychologist and neurosurgical assessment. He has assessed combined neurobehavioral and cognitive disability of 43.33%, permanent physical impairment with respect to whole body is 84.2%.
54. PW-2 was subjected to cross-examination. In the cross- examination, she admits that to assess the cognitive disability, IQ Test has to be conducted and she is not aware of the IQ score of the petitioner. She admits that he has suffered SDH and SAH. The SDH is blood clotting out side the brain and the said blood clotting was removed by conducting the surgery and bone was also removed. It is elicited that in this case they have kept the skull outside the body and the skull is still in the freezer since the injured did not go for the follow up treatment after the discharge. The skull can be replaced within maximum period of 6 months. If it is sunken, the chances of replacing is not possible. It is further elicited that now the cerebral edema is cured. She admits that there is a treatment for behavioral SCCH-1 32 MVC No.3246/2016 changes. It is suggested that if the petitioner is provided the behavioral therapy the same will reduce and the said suggestion was denied.
55. It is further admitted in the cross-examination that he can understand the speech but he is unable to communicate and the speech disturbance can be improved gradually but it may or may not improve. Petitioner is in need of one more surgery that is cranio plasty for left calvarial defect. It is suggested that the said surgery will improve the condition and the same is only for protection and the said suggestion was denied. She further admits that in this case, she has assessed permanent physical impairment which is different from permanent physical disability. It is suggested that due to cognitive disability only, the petitioner is suffering from right hemiparesis. She further admits that cognitive disability is not permanent one but it may or may not improve and in this case she has assessed the permanent physical impairment. Further she admits that the permanent physical impairment is different from permanent physical disability. It is suggested that 1/3rd permanent physical impairment has to be taken into consideration for permanent disability. Witness volunteers that, the same can be taken only in respect of limb disability. She says she has assessed the disability based on the Government Gazette SCCH-1 33 MVC No.3246/2016 notification. PW-2 admits that the patient is under continuous treatment.
56. I have already pointed out that the documents which are produced before the Court i.e., wound certificate which is marked as Ex.P.2 discloses that the petitioner has suffered head injury SDH and SAH, FTP fusion. C.T. scan of the brain shows multiple skull bone fracture and the discharge summary which is marked at Ex.P.8 discloses petitioner was inpatient for a period of 57 days. It also discloses that the petitioner had sustained traumatic brain injury and he was subjected to surgery. For having taken note of the nature of the injuries suffered by the petitioner, long duration of treatment taken by the petitioner as an inpatient , surgery underwent by him , I award a sum of Rs.75,000/- towards Pain and sufferings.
57. Now let me appreciate both oral and documentary evidence regarding disability is concerned. The petitioner has sustained traumatic brain injury SDH, SAH, FTP contusion, multiple skull bone fracture. It has to be noted that the petitioner is not in a position to speak now. The doctor who treated the petitioner has assessed the combined neurobehavioral and cognitive disability of 43.33% and SCCH-1 34 MVC No.3246/2016 permanent physical impairment with respect to whole body is 84.2%. In the cross-examination, it is elicited that blood clotting was removed by conducting surgery and bone was also removed and they have kept the skull outside the body and the same is still in freezer. Doctor categorically says the same can be replaced within maximum period of 6 months but the same is not replaced. PW-2 further says petitioner can understand the speech but he is unable to communicate. He is in need of one more surgery of Cranio plasty for left calvarial defect. PW-2 categorically admits that she has assessed the permanent physical impairment and permanent physical impairment is different from permanent physical disability. Though it is suggested 1/3rd permanent physical impairment has to be taken into consideration for permanent disability , PW-2 says same can be taken only in respect of limb disability. Petitioner has produced Ex.P.9 neurobehavioral and cognitive assessment Report which discloses that now the patient behavioral changes, irritable, aggressive, emotional lability present, difficulty in speaking , able to speak 1 or 2 words on and off, he is able to vocalize, forgetfulness, forgets names, conversations, what he has eaten for the previous meal, gets head ache and giddiness on watching TV, feels tired all the time , finds it difficult to understand SCCH-1 35 MVC No.3246/2016 conversations, needs repetition, needs help for almost all the activities of daily living. Ex.P.10 Neurobehavioral assessment report is also produced which shows the disability suffered by the petitioner.
58. Doctor who has been examined before the Court she has assessed the permanent disability as 82.4% to whole body. She has assessed the combined neurobehavioral and cognitive disabilities at 43.33%. It is important to note that petitioner can understand the speech but he is unable to communicate. The speech disturbance can be improved gradually but it may or may not improve. PW-2 further says he is in need of one more surgery that is cranio plasty for left calvarial defect but PW-2 has not given any estimation with regard to surgery. The contention of the respondent that 1/3rd of permanent physical impairment has to be taken into consideration for assessing permanent disability and this contention cannot be accepted for the reason that same can be taken only in respect of limb disability. I have accepted the evidence of PW-2 that when the petitioner has sustained head injury, this Tribunal cannot take 1/3rd for assessment of permanent disability . For having taken note of the nature of the head injury suffered by the petitioner, traumatic brain injury and multiple skull bone fracture , I do not find any more exaggeration in SCCH-1 36 MVC No.3246/2016 the evidence of PW-2. PW -2 assessed the permanent physical impairment to whole body at 84.2%. It appears the same is little on higher side. The petitioner is able to understand the speech but he cannot communicate back. The PW-2 also categorically admitted that she has assessed the permanent physical impairment and permanent physical impairment is different from permanent physical disability. The PW-2 has assessed the physical disability and not functional disability, hence, I have accepted the permanent physical impairment to whole body at 50% and not 84.2%.
59. It is the case of the petitioner that, at the time of accident he was aged about 22 years and was working as painter and earning Rs.15,000/p.m. The respondents in their written statement have denied the nature of injuries sustained by the petitioner, avocation and income of the petitioner . In order to substantiate the same PW-1 has not produced any documentary evidence. In the cross-examination, PW-1 admitted that he has not produced any document to show that his son was getting Rs.15,000/p.m. by working as painter. It is suggested that he was not having any income and only in order to get higher compensation he is giving false evidence before the Court and the said suggestion was denied.
60. PW-1 in support of his contention, he has relied upon the judgment reported in 2016(1) AKR 39 (Peter Vs.Smt. Hanifa and another). In this case the Hon'ble Division Bench has taken the SCCH-1 37 MVC No.3246/2016 notional income of the claimant as Rs.9,000/p.m. In the said case, the injured was working as mason. In the case on hand, in order to show that petitioner was working as painter, he has not examined either the employer or mestri under whom this petitioner was working. In the absence of any documentary proof, this Court has to take the notional income of the petitioner at Rs.7,000/- p.m. as the accident is of the year 2015.
61. The counsel appearing for the petitioner also brought to my notice the compensation awarded under different heads including loss of amenities, medical expenses, attendant charges, conveyance and other charges and also brought to my notice the judgment of Apex Court in 2012 AIR SCW 4771 (Kavitha Vs. Deepak and ors.) regarding loss of earning capacity-distinct from heads of pain and suffering, loss of enjoyment of life or medical expenses.
62. In keeping the principles laid down in the judgment referred supra and for having taken note of the nature of the injuries sustained by the petitioner and the disability suffered by the petitioner at 50% and petitioner has to led rest of his life with the disability and in view of the judgment of Apex Court reported in 2014 ACJ 627 (Syed Sqdiq and Others Vs. Divisional Manager, United India Insurance Co., Ltd.,) the Hon'ble Supreme Court of India assessed the income at SCCH-1 38 MVC No.3246/2016 Rs.6,500/- per month for a vegetable vendor and assessed the permanent functional disability at 85% and added 50% income for future prospects and also awarded compensation on other heads such as cost of artificial leg, for pain and suffering, for loss of expectation of life, loss of amenities in life, for medical and incidental expenses and litigation costs.
63. Further, it is also held in the judgment reported in 2014 ACJ 653 (Sanjay Kumar Vs. Ashok Kumar and others) wherein it is held that :
Amputation of right leg above knee-
injured was hospitalized for 46 days and remained under treatment for 3 months -
injured an embroiderer, earning Rs.4,500/p.m. and as per entry 18, Par II, Schedule I of Workmen's Compensation Act, suffered 70 percent loss of earning capacity- Tribunal taking into consideration minimum wages for unskilled worker assessed income at Rs.3,166/p.m. , adopted multiplier of 16 and awarded Rs.4,83,472/-. High Court adopted multiplier of 18 and enhanced the award to Rs.6,35,808/-. Apex Court taking into consideration that injured was a skilled worker, accepted his claim of income of Rs.4,500/p.m. allowed 50 percent increase for future prospects , took loss of earning capacity at 70 percent, adopted multiplier of 18 and allowed Rs.10,20,600/- plus Rs.13,500/- for loss of income during SCCH-1 39 MVC No.3246/2016 treatment, Rs.75,000/- for medical expenses, attendant and conveyance, Rs.75,000/- for loss of marriage prospects, Rs.1,50,000/- for mental agony and pain and suffering , Rs.1,00,000/- for loss of amenities and Rs.25,000/- as cost of litigation. Award of Rs.6,35,808/- was enhanced to Rs.14,59,100/-. In the case on hand, the income of the petitioner is taken as Rs.7,000/- per month. In the judgment referred supra, the Apex Court has allowed 50% of income for future prospects. Thus, in the case on hand also, 50% of income for future prospects has to be taken and it comes to Rs.3,500/- and the total income of petitioner works out to Rs.10,500/-.
64. The petitioner has stated in the petition his age as 22 years. To substantiate the same he has not produced any documentary proof. In the absence of documentary proof, this Court has to rely upon the medical records. In the wound certificate age of the petitioner is mentioned as 20 years and in the discharge summary age is mentioned as 21 years. As the petitioner has mentioned his age as 22 years in the petition, the same has to be taken into consideration. Therefore, as on the date of accident petitioner is aged about 22 years and the appropriate multiplier applicable is 18. Hence, the petitioner is SCCH-1 40 MVC No.3246/2016 entitled for compensation under the head of loss of earning due to disability as : Rs.10,500x12x18x50/100 = Rs.11,34,000/. Hence, I award Rs.11,34,000/- towards future loss of earning capacity due to permanent disability.
65. Regarding loss of income is concerned, I have already held the notional income of the petitioner at Rs.7,000/p.m. He has sustained head injury with SDH, SAH, FTP with fusion. C.T. Scan shows brain injury , skull bone fracture and he underwent surgery and petitioner was forced to remain absent for his work atleast for a period of 6 months due to the accidental injuries. Hence, I award Rs.42,000/- towards loss of income during the treatment period .
66. The petitioner has produced medical bills to the tune of Rs.8,46,439/- as per Ex.P.7. In the cross-examination, it is suggested that he is falsely claiming that he had spent an amount of Rs.10,00,000/- towards medication and the said suggestion was denied. It is further suggested that Ex.P.7 is the computer generated copy and the same is duplicate and original was given for medical reimbursement and the same was denied. A suggestion was made that inspite of getting medical reimbursement, for the second time he is SCCH-1 41 MVC No.3246/2016 claiming the same and the said suggestion was denied. He says he has to verify whether the author of Ex.P.7 can come and give evidence before the Court. It is also suggested that Ex.P.7 is created for the purpose of this case and the said suggestion was denied. On perusal of Ex.P.7, PW-1 has made payments to the tune of Rs.7,67,000/- and remaining amount of Rs.79,439/- also paid by PW-1. Ex.P.7 is issued by Manipal hospital and petitioner was in the hospital for a period of 57 days. I did not find any double claim in respect of the medical bills. Only one final bill is issued on the date of discharge i.e., 11.12.2015. Though it is suggested to PW-1 that medical bills are reimbursed no material is placed before the Court. Hence, this Court has to accept the medical bills to the tune of Rs.8,46,439/- and the same is rounded off to Rs.8,47,000/-. Hence, I award a sum of Rs.8,47,000/- towards Medical expenses.
67. The petitioner took treatment in the hospital as an inpatient from 06.10.2015 to 11.12.2015 i.e., for a period of 57 days. During the period of treatment , he might have spent some amount towards conveyance, food and nourishment, attendant charges and other incidental charges. Hence, I award Rs.50,000/- as compensation SCCH-1 42 MVC No.3246/2016 under the head of food and nourishment, conveyance, attendant charges and other incidental charges.
68. The petitioner is aged about 22 years and in the accident he has suffered head injury with SDH, SAH, FTP with fusion. CT. Scan showed brain injury , skull bone fracture and he underwent surgery. Further more, he has to lead rest of his life with this disability of 50%. For having taken note of the said fact into consideration, I award Rs.75,000/- under the head of loss of amenities.
69. It is the case of the petitioner that in the accident he has sustained head injury with SDH, SAH, FTP with fusion and he underwent surgery. It is elicited in the cross-examination of PW-2 that C.T.Scan was taken immediately after two hours of the injury and as per the C.T.Scan report, he has suffered SDH and SAH. The SDH is blood clotting out side the brain and the said blood clotting was removed by conducting the surgery and bone was also removed. PW2 further says in this case they have kept the skull outside the body. The skull still in the freezer since the injured did not come for the follow up treatment after discharge. It can be replaced within maximum period of 6 months. If it is sunken, the chances of replacing is not SCCH-1 43 MVC No.3246/2016 possible. PW-2 says the cerebral edema is cured and there is a treatment for behavioral changes. PW-2 admits in the cross- examination that petitioner can understand the speech but he is unable to communicate. PW-2 says the speech disturbance can be improved gradually but it may or may not improve. For having taken note of the fact that the petitioner is aged 22 years and he has suffered head injury, speech disturbance, he cannot communicate and his skull has been kept outside the body and petitioner is unmarried, he has lost his marriage prospects. In view of the above discussions, I award a sum of Rs.75,000/- towards loss of marriage prospects.
70. It is the case of the petitioner that he has to undergo future surgery. In the cross-examination, PW-2 says petitioner can understand the speech but he is unable to communicate. The speech disturbance can be improved gradually but it may or may not improve, hence, petitioner is in need of one more surgery that is cranio plasty for left calvarial defect. It is suggested that the said surgery will improve the condition and the same is only for protection and the same is denied. During the period of inpatient he underwent neurorehabilation and supportive care, gradually he was stable SCCH-1 44 MVC No.3246/2016 neurologically and hemodynamically stable. At the time of discharge he was in GCS of E3 V2 M5 (localizing with left upper limb, with pupils bilaterally equal and reacting to light, power in right upper and lower limbs of 1-2/5, dependant for daily activities). He was advised to continue physiotherapy and discharged with bladder and bowel care, wheelchair mobilization and was not on regular follow up. The petitioner complains of behavioural changes, speech disturbance, left calvarial defect, and neurological disabilities such as right hemiparesis with facial weakness, neurobehavioral and cognitive disability. PW-2 has stated in his cross-examination that petitioner is in need of cranio plasty for left calvarial defect. He has not produced any estimation regarding the future surgery. For having taken note of the amount spent for earlier surgery, the petitioner might be in need of Rs.1,00,000/- and above for the surgery. In view of the above discussed facts into consideration, I award a sum of Rs.1,00,000/- towards future medical expenses.
71. The details of compensation, I propose to award are as under:
SCCH-1 45 MVC No.3246/2016
Sl. Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 75,000-00
2. Medical expenses Rs. 8,47,000-00
3. Loss of income during the period of Rs. 42,000-00
inpatient and period of treatment.
4. Food and nourishment, conveyance ,
attendant charges, ambulance
Rs. 50,000-00
charges and other incidental
expenses.
5. Future loss of earning capacity due Rs. 11,34,000-00
to permanent disability
6. Loss of amenities Rs. 75,000-00
7. Future Medical Expenses Rs. 1,00,000-00
8. Loss of Marriage prospects Rs. 75,000-00
Total Rs. 23,98,000-00
72. It is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the cost of living as held in a case reported in (2011) 4 SCC 481 : (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy), the Supreme Court has held that the Court has to take into account the SCCH-1 46 MVC No.3246/2016 rate of interest of the nationalized bank and the present day cost of living while awarding interest on compensation amount. It is further held in the unreported judgment of the High Court of Karnataka in MFC No.5956/2017(MV) c/w MFA 6810/2017 (MV), wherein the High Court of Karnataka, while referring to Section 149(1) read with Section 34 of CPC has awarded 6% interest on the compensation amount. By taking into account the rate of interest of the nationalized Banks at present and on the basis of above citations, I deem it proper to award the rate of interest on the compensation amount at 6% p.a. Accordingly, the petitioner is entitled to interest at the rate of 6% p.a.
73. Let me discuss with regard to the liability is concerned. I have already held while discussing issue No.1 and 2 that the accident occurred due to the negligence of the drivers of Tata indica car bearing No. KA-44-4049 and Mahindra Maximo vehicle bearing No. KA-03-AA-3526 and the Police after investigation have filed charge sheet against the both the drivers of the vehicles. The respondents No.1 and 2 are the owner and insurer of the tata indica car bearing No. KA-44-4049 and respondents NO.3 and 4 are the owner and insurer of the Mahindra Maximo vehicle bearing No. KA-03-AA-3526. SCCH-1 47 MVC No.3246/2016
74. The respondent No.4, insurer of the Mahindra Maximo vehicle has taken the defence that the driver of the vehicle was not having the driving licence to drive the goods vehicle. In order to substantiate the said contention, the 4th respondent has examined one Naveen, S.D.A. in R.T.O. Indiranagar as RW-1 and got marked his driving licence extract, B register extract and F.C. particulars as Ex.R.2 to 4. RW-1 says the driver is having driving licence to drive the cab but not the goods vehicle and the vehicle is LGV. RW-1 was subjected to cross-examination. In the cross-examination, it is elicited that the unladen weight of the vehicle is 950 kg and ladden weight is 1800 k.g. and the vehicle is LMV goods vehicle . He admits that the driver is having the transport endorsement but the same is in respect of cab only not for LGV. The PSV badge is also only for passenger vehicle. It is suggested that the driver is also having driving licence to drive the LGV also and the said suggestion was denied.
75. The 4th respondent also examined its Legal Officer as RW-
3. In his affidavit, he has stated that the insurance company is not liable to pay the compensation since the driver was not having valid and effective driving licence. It is further contended that they have summoned the R.T.O. and examined as RW-1 and produced driving SCCH-1 48 MVC No.3246/2016 licence before the Court and he was not having valid and effective driving licence and endorsement to drive the vehicle. In the cross- examination, though he contend that they have issued notice to the insured they have not produced the receipt for having sent the notice to the insured. A suggestion was made that the notice which is marked as Ex.R.9 is created and the same was denied. However, he admits that Police after investigation have filed charge sheet against both the drivers of both the vehicles. It is further suggested that in order to absolve their liability he is giving false evidence before the Court and the said suggestion was denied. He also admits the unladen weight of their insured vehicle is 950 kgs. It is suggested that if the unladen weight is less than 7500 kgs and the same would be termed as LMV and the said suggestion was denied. It is further suggested that even though the driver was having the valid driving licence, he is giving false evidence before the Court and the same was denied.
76. The counsel appearing for the petitioner in the argument has contended that the driver was having the valid driving licence and the driver was having valid driving licence to drive the L.M.V. i.e., includes transport vehicle. In support of his contention he has relied SCCH-1 49 MVC No.3246/2016 upon AIR 2017 SC 3668 (Mukund Dewangan Vs. Oriental Insurance Company Limited). In this judgment the Apex Court held that LMV includes transport vehicle as per the weight prescribed in section 2(21) read with section 2(48)-Driver holding LMV licence can drive all vehicles of class including transport vehicles-No separate endorsement required to drive such transport vehicles.
77. The evidence of RW-1 is that driver was not having driving licence to drive LGV , however, he was having driving licence to drive the transport vehicle. The Apex Court in the judgment in AIR 2017 SC 3668 (Mukund Dewangan Vs. Oriental Insurance Company Limited) held that the definition of Light Motor Vehicle has to be given full effect to and it has to be read with section 10(2)(d) which makes it abundantly clear that 'light motor vehicle ' is also a 'transport vehicle', gross vehicle weight or unladen weight does not exceed 7500 kgs., as specified in provision. Thus a driver is issued a licence as per the class of vehicle i.e., light motor vehicle, transport vehicle or omni bus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified in section 2(21) of Act. Provision of section 3 of Act requires that a person in order to drive a SCCH-1 50 MVC No.3246/2016 'transport vehicle' must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or Omni bus , gross vehicle weight or motor car, road roller or tractor, unladen weight of which, as case may be, does not exceed 7500 k.g. Insertion of 'transport vehicle' categorically in Section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of class of light motor vehicle. A distinction is made in Act if heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle in basis of 'gross vehicle weight ' or 'unladen weight ' for heavy passenger motor vehicle, heavy goods vehicle, weight , as case may be, exceed 12000 kg., Medium goods vehicles shall mean any goods carriage other than a light motor vehicle or a heavy goods vehicle' whereas 'medium passenger motor vehicles' means any public service vehicle or private service vehicle or educational institution bus other than a motor cycle , invalid carriage, light motor vehicle or heavy passenger motor vehicles. Thus, newly incorporated expression 'transport vehicle' in S.10(2)(e) would include only vehicles of category as defined in S.2(16)-Heavy goods vehicle, S.2(17)-heavy passenger motor vehicle, S.2(23)-medium SCCH-1 51 MVC No.3246/2016 goods vehicle and S.2(24) medium passenger motor vehicle and would not include the "light motor vehicle " which means transport vehicle also of weight specified in S.2(21).
78. If the unladen weight which does not exceed 7500 kg and holder of driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, gross vehicle weight of which does not exceed 7500kg..
79. In view of the principles laid down in the judgment referred supra and if the unladen weight does not exceed 7500 k.g. and the witness who have examined before the Court as RW-1 and RW3 categorically admits the unladen weight is 950 k.g. which is less than 7500k.g. Under the circumstances, the principles laid down in the judgments referred supra is aptly applicable to the case on hand. Hence, liability has to be fixed on the insurance companies.
80. Hon'ble Apex Court while making the conclusion in para 46 has clearly held that no separate endorsement on the licence is required to drive transport vehicle of light motor vehicle, hence, the liability has to be fastened on the insurance company. The respondent SCCH-1 52 MVC No.3246/2016 No.2 has not disputed anything with regard to liability is concerned. However, I have already discussed in detail regarding the accident and held that both the drivers of the vehicles are liable to pay compensation at the ratio of 50% each. The respondents No.2 and 4 being the insurers of the offending vehicles are liable to pay 50% each of the compensation to the petitioner . Hence, this issue is answered accordingly.
81. Issue No.4: In view of the above discussions, I proceed to pass the following:
ORDER The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for compensation of Rs.23,98,000/- with interest at the rate of 6% per annum on Rs.22,98,000/- from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay 50% of the compensation amount with interest to the petitioner. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and it is directed to SCCH-1 53 MVC No.3246/2016 pay the compensation amount within two months from the date of this order.
The respondents No.3 and 4 are jointly and severally liable to pay 50% of the compensation amount with interest to the petitioner. However, the primary liability to pay the compensation amount is fixed on the respondent No.4- Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Out of the compensation amount to which the petitioner is entitled, 50% with proportionate interest shall be kept in F.D. in his name in any nationalized or scheduled bank of his choice for a period of 5 years with liberty to draw the accrued interest periodically and the remaining amount with proportionate interest is ordered to be released to him.
Advocate's fee is fixed at Rs.1000/-. Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 4th day of April 2018) (H.P.SANDESH,) Member, Prl. M.A.C.T., & Chief Judge,Court of Small Causes, SCCH-1 54 MVC No.3246/2016 Bangalore.
ANNEXURES:
Witnesses examined on behalf of the petitioners:
P.W.1 : : Mari Rangegowda P.W.2 : Dr.Tejaswi Valdamani P.W.3 : Santhosh Documents marked on behalf of the petitioners: Ex.P-1 : Copy of FIR Ex.P-2 : Copy of wound certificate Ex.P-3 : Copy of mahazar Ex.P-4 : Copy of sketch Ex.P-5 : Copy of IMV Report Ex.P-6 : Copy of charge sheet Ex.P-7 : Medical bill Ex.P-8 Discharge summary Ex.P-9 Neurobehavioral and cognitive report Ex.P-10 Neuropsychological assessment Report Ex.P-11 Out patient record Ex.P-12 Inpatient record Ex.P.13 Certified copy of notice under section 133 given to first respondent Ex.P.14 Reply to notice Ex.P.15 Certified copy of notice under section 133 given to 3rd respondent Ex.P.16 Notice given to the driver Ex.P.17 Reply to notice under section 133 SCCH-1 55 MVC No.3246/2016 Ex.P.18 Certified copy of order sheet in C.C.No.14197/2016 Ex.P.19 & Plea guilty made by 1st and 2nd accused 20
Witnesses examined on behalf of the respondents :
RW-1 Naveen
RW-2 Padma
RW-3 Akshay Kulkarni
RW-4 Mohan Kumar A.S.
Documents marked on behalf of the respondents:
Ex.R.1 Authorization letter
Ex.R.2 Driving licence Extract
Ex.R.3 B Register Extract
Ex.R.4 F.C.Particulars
Ex.R.5 Authorization letter
Ex.R.6 Police intimation
Ex.R.7 M.L.C. Extract
Ex.R.8 Authorization letter
Ex.R.9 Copy of notice sent to the insured
Ex.R.10 Copy of Policy
Ex.R.11 Copy of Policy
(H.P.SANDESH,)
Member, Prl. M.A.C.T., &
Chief Judge, Court of Small Causes,
Bangalore.
Kvs/-