Bangalore District Court
Sri.S.Subbarayappa vs M/S.New India Assurance on 10 August, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 10th DAY OF AUGUST, 2015
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.179/2003
Petitioner/s Sri.S.Subbarayappa,
S/o Lingappa,
Aged 43 years,
Jathavara Village & Post,
Chikkaballapura,
Kolar District.
(By Pleader - Sri.K.R.Murali Krishna.)
V/s
Respondent/s 1.M/s.New India Assurance
Co.Ltd.,
Divisional Office-11
Unity Buildings, 4th floor
Tower Block, J.C.Road,
Bengaluru - 560 002.
(By Pleader - Sri.M.B.Ravikumar.)
2.Sri.K.Shashikumar,
S/o Krishnappa.M.
Nayanahalli,
Patreanahalli post,
Chikkaballapura Taluk,
Kolar District.
(By Pleader - Exparte.)
(SCCH-15) 2 MVC.179/2003
JUDGMENT
Petitioner has filed the present petition under Section 166 of MV Act seeking grant of compensation on account of injuries he has suffered in RTA.
2. Initially this petition was assigned to the Hon'ble SCCH-10 and subsequently as per the notification No.ADMI/419/2014 dated 06.05.2014, it is reassigned to this Tribunal for disposal in accordance with law.
3. The brief case of petitioner is that on 10.12.2002 at about 10.30 p.m., he was traveling in the goods tempo bearing registration No.KA-21 1162 with sericulture goods from Shiddlaghatta to Chikkaballapura. When they just left Gidnahalli and reached Jathavara, due to the rash and negligent driving of the tempo driver, the vehicle turtle down.
b) Because of which, he has suffered severe injuries all over the body. Accident took place solely due to negligent driving of the tempo driver. Therefore, 2nd respondent being the RC owner and 1st respondent being the insurer of the tempo are jointly and severally liable to (SCCH-15) 3 MVC.179/2003 pay the compensation. Hence, prayed to allow the petition as sought for.
4. In response to due service of notices, 2nd respondent remained exparte. 1st respondent has appeared through its counsel and filed its statement of objections to the main petitioner denying the petition averments.
b) However, it has admitted the policy and its force on the date of accident but has contended that liability is subject to the terms and conditions of the policy such as driving licence and the vehicular documents. Therefore, prayed to dismiss the petition against it with costs.
c) Subsequently, it has also filed its additional statement of objections wherein it has contended that 2nd respondent is the RC owner of both tempo alleged to be involved in the present case bearing registration No.KA- 21/1162 as well as one more maxicab bearing registration No.KA-07/2148.
d) It has also contended that the injured victims have filed claim petition seeking compensation due to injuries they have suffered. It is their allegation that at (SCCH-15) 4 MVC.179/2003 the time of accident, they were traveling in the tempo bearing registration KA-21/1162 .
e) It is also in its additional statement of objections that, on intimation with regard to the accident, it has deputed one Mr.S.N.Venugopal, as surveyor to verify the veracity of the facts and to survey the own damages claim who went to accident spot and also to the place of accused while physically verifying the vehicle, it is found that there are two different distinct numbers on the left long members of the chassis No.357010J93808900 to be the original one with neat punch and proper alignment and at proper place confirming this to be the original manufacturers punching.
f) It is also contended that at the same time, an another chassis punch was found on the same chassis but in a different location with improper alignment of digits in haphazard manner and even the punching was observed to be recently done compared to the other original one, the 2nd number is 357012MW816770.
g) It is also contended that therefore, surveyor suspecting some manipulation in engine number, (SCCH-15) 5 MVC.179/2003 physically verified and found to be 497SP21- MWQ733003. However, engine assembly was seen just kept on the bed which was seen clearly slit/cut by axe without mounting which evidently confirms the removal of original engine with original chassis No.35010J93808900 and replacing the engine belonging to the vehicle with chassis number 357012MWQ816770.
h) It is also contended that even gear box bedding was seen slit and now kept loose without mounting. It is also that the front and rear registration numbers, plates were seen bolted of fresh confirming the replacement of the number plates.
i) It has also contended that the original registration numbers painted on the rear panel and two sides panels on the either side of the body were seen completely removed. These manipulations explain and high light the motive of the insured to make it appear that the vehicle with registration No.KA-21-1162 was the vehicle which met with the accident on 10.12.2002.
j) It is also contended that incidentally it is to be noted that though the insured is from the village very (SCCH-15) 6 MVC.179/2003 near to Chikkaballapur and the vehicle insured with new India Assurance Company branch office at Chikkaballapura and the intimation was given to the insurer only in the evening of 12.12.2001 inspite of 11.12.2002 being a working day, which clearly implies that the insured gained time to arrange fresh punching of chassis of different vehicle and replacing the engine with the different one erasing the original painted registration number on the body of the goods vehicle.
k) It is also contended that fact of manipulation of chassis and engine number was evident on physical verification of the vehicle, it was essential to probe further and find out the reason for the same and to obtain documentary proof for in that regard. Enquiries were made with the authorized Telco at Bengaluru and learnt that chassis with frame 357010J93808900 was sold to one Kolar party.
l) It is also contended that on verification with the Kolar RTO authorities, it was gathered that the particular vehicle with the above chassis bears registration No.KA- 07-2148 in favour of Sri.J.V.Ravikumar, (SCCH-15) 7 MVC.179/2003 Chikkaballapura. The relevant B register extract in original was obtained. The further tracing of change of ownership was continued and it was gathered from the ARTO, Chikkaballapura that the vehicle bearing registration NO.KA-07/2148 is transferred in favour of one K.A.Ramesh.
m) It is also contended that there is no insurance coverage for the vehicle bearing registration No.KA- 07/2148 i.e. chassis No.357010J93808900 and engine No.497SP21J93715138. Since the vehicle with the original registration No.KA-07/2148 met with an accident on 10.12.2002, the insured being the same owner of the vehicle bearing registration No.KA-21/1162 having comprehensive policy, took the advantage of punching the chassis number of later vehicle (i.e.KA-21/1162) replacing the engine of later vehicle on the former vehicle chassis No.KA-07/2148 delayed the process of intimation to the insurer.
n) It has also contended that as per the survey report of Sri.S.N.Venugopal, it is crystal clear and evident beyond doubt that there was deliberate attempt by 2nd (SCCH-15) 8 MVC.179/2003 respondent to wrongly project a different chassis number and engine number of another vehicle bearing No.KA- 21/1162 owned by him on the vehicle bearing No.KA-07/ 2148 which is also owned by him which met with the accident on 10.12.2002 to gain undue pecuniary advantage from comprehensive insurance covered for the vehicle No.KA-21/1162.
o) It is also contended in additional statement that 2nd respondent colluded with the various authorities and got changed the engine number and chassis number, destroyed the evidence even though, the vehicle bearing registration No.KA-07 2148 which was involved in the accident. He has cheated the insurance company for lakhs of rupees and having dishonest intention from the date of inception of the accident in order to cheat it.
p) It is also contended that because of fraud played by the insured, it is contesting many motor TP claims amounting to Rs.25,00,000/- and above which are pending in several Courts at various stages.
q) It is also contended that it has directed the insured to produce all the relevant documents, but the (SCCH-15) 9 MVC.179/2003 things were manipulated in each stage by him and he could not confront the insurance company and finally he has abandoned the claim. Therefore, it is not liable to pay the compensation. Hence, prayed to dismiss the petition against it with costs.
5. On the above said pleadings of the parties, my learned predecessor in office i.e. the then presiding officer of the Hon'ble SCCH-10 was pleased to frame the following issues.
1. Whether petitioner proves that he has sustained injuries in the RTA on 10.12.2002 at about 10:30 p.m. between Giddanahalli - Jathavara, due to rash and actionable negligence by the driver of the tempo No.KA-21/1162?
2. Whether petitioner proves that he is entitled for compensation? If so, to what amount and from whom he is entitled to?
3. What order?
6. To prove the above said issues and to substantiate their respective contentions, petitioner himself has entered into witness box as PW-1. He has got examined the doctor who has treated and assessed the (SCCH-15) 10 MVC.179/2003 disability as PW-2. Got exhibited 17 documents and closed his side. Per contra, 1st respondent got examined its senior assistant as RW-1. Got exhibited 5 documents and closes its side.
7. After going through the evidence on record and hearing both the sides on merits, my learned predecessor in office i.e. the then presiding officer of the Hon'ble SCCH-10 was pleased to allow the petition in part awarding compensation of Rs.1,66,400/- together with interest at 6% p.a. saddling liability on insurance company as per his judgment dated 17.08.2005
8. Being aggrieved by the said judgment, the petitioner went in appeal in MFA.1476/2006 seeking enhancement of compensation and 1st respondent went in appeal in MFA.1538/2006 challenging the liability. The Hon'ble High Court of Karnataka was pleased to take both appeals together for consideration.
9. As per its judgment dated 09.11.2011, the Hon'ble High Court of Karnataka was pleased to allow both the appeals and set-aside the impugned judgment and award and remanded back the matter for fresh (SCCH-15) 11 MVC.179/2003 consideration by giving an opportunity to both the parties to adduce their additional evidence if any.
10. On receipt of records from the Hon'ble High Court of Karnataka, an opportunity is given to both the parties to adduce their further evidence if any. In response to which, despite of sufficient opportunities, petitioner has not let in any further evidence.
b) However, 1st respondent got examined the present RC owner of the maxicab bearing registration No.KA-07-2148 as RW-2 and authorized surveyor as RW-
3. Got produced 4 more documents at Ex.R-7 to 10.
11. On the application filed by counsel for 1st respondent seeking examination of both vehicles, on going through the statement of objections, the then presiding officer of the Hon'ble SCCH-10 was pleased to allow the application in part as per the order dated 12.07.2002.
b) Accordingly, senior MV Inspector of Kolar is appointed as Court Commissioner who has submitted his report. Since, both the parties have filed their statement of objections to the commissioner's report, he is (SCCH-15) 12 MVC.179/2003 examined as CW-1 his report and its annexure are exhibited as Ex.C-1 to 10.
12. Heard arguments of both the sides on merits of the case. In addition, counsels for both the petitioner and 1st respondent have also filed their written arguments. Gone through the written arguments of both the counsels and perused the record.
13. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1: Affirmative.
2. Issue No.2: Petitioner is entitled for compensation amount of Rs.3,65,500/- together with interest at 6% p.a. from the date of petition till the realization in its entirety from 1st respondent.
3. Issue No.3: As per final order for the following reasons.
REASONS
14. ISSUE No.1:- As observed above, 2nd respondent remained exparte. Even 1st respondent has denied the case of the petitioner and called him to strict proof of his case, in its initial statement of the objections to the main (SCCH-15) 13 MVC.179/2003 petition, in its additional statement of objections, it has concentrated only with regard to false implication of vehicle by punching of engine number and chassis number of another vehicle as they are of the present vehicle i.e. the insured tempo alleged to be involved in the present accident and it has specifically contended that the vehicle involved in the accident is another vehicle of 2nd respondent which bears the registration No.KA-07/2148 and the insured vehicle i.e. the tempo bearing registration No.KA-21/1162.
15. So, absolutely there is no dispute with regard to the alleged accident; the date, time and place of accident; the fact that petitioner was inmate in the vehicle at the time of accident as the owner of goods and also the fact of petitioner suffering injuries in the accident. So, the only point now remained for the due consideration of this Tribunal for the proper adjudication of this issue is the involvement of the insured tempo and thereby the rash and negligent act on the part of its i.e. the tempo driver.
16. To establish his case, as observed above, petitioner himself has entered into witness box as PW-1. (SCCH-15) 14 MVC.179/2003 He has filed his affidavit evidence wherein he has reiterated the petition averments. He has specifically deposed that at the time of accident, he was proceeding as inmate of the tempo with his sericulture goods from Siddlaghatta towards Chikkaballapura and accident took place because of the negligent driving of the tempo driver.
17. In his cross-examination, only one question was asked about registration number of the vehicle, for which he has deposed that he does not know the registration number of the vehicle. Except that there is no single question put forth to the petitioner and nothing is elicited in his cross-examination about his oral evidence.
18. However, to establish its defence, 3rd respondent as observed above, at the initial stage got examined its Senior Assistant as RW-1, who has filed his affidavit evidence wherein he has stated that 2nd respondent reported about the accident stating that the vehicle was damaged.
19. On the intimation of damage to vehicle, the qualified surveyor was deputed to inspect the damages to the vehicle who had suspected some manipulation while (SCCH-15) 15 MVC.179/2003 inspecting the vehicle. So, the surveyor had carried out detailed verification of all the aspects which revealed that vehicle actually involved in accident was vehicle bearing registration No.KA-07/2148 but the said vehicle had no insurance. So, the vehicle bearing registration No.KA- 21/1162 was brought into picture as the one involved in accident by changing the number plates of the vehicle; punching the engine and chassis number, since 2nd respondent himself is owner of both the vehicles. Therefore, they are not liable to pay compensation.
20. During his chief evidence, he has produced surveyor's investigation report at Ex.R-1 and the certified copies of 'B' register extract of both the vehicles at Ex.R-2 to 4; statement of one Manjunath i.e. alleged cleaner of insured tempo as Ex.R-5 and the impression of engine numbers of both the vehicles respectively at Ex.R-6.
21. In his cross-examination he has deposed that they have issued notice to the insured/2nd respondent regarding the fraud committed by him; they did not initiate any proceedings against the insured regarding (SCCH-15) 16 MVC.179/2003 the alleged fraud played by him; they verified all the police papers pertain to the case.
22. He has denied the suggestion that Ex.R-1 to 6 are created for the purpose of present case with an intention to shrink their liability to pay the compensation. He has also denied the suggestion that Manjunath has not given any statement as per Ex.R-5.
23. RW-2 is present alleged RC owner of maxicab bearing registration No.KA-07/2148. He has deposed that he is the RC owner of the said vehicle and sold the same to the Secretary, Cambridge Primary School, No.15, Yelahanka New Town, Bengaluru on 13.08.2007. But he has not gone through RC book to show the transfer ownership of the aforesaid maxicab. Since, it is the contention of 1st respondent that the witness is the RC owner and required to produce the vehicle, the counsel for 1st respondent is permitted to cross-examine him/RW-2.
24. However, in the cross-examination also RW-2 denied the suggestion that even now he is RC owner of the vehicle bearing registration KA-07/2148 and despite (SCCH-15) 17 MVC.179/2003 of that he has taken false defence and given false evidence. He has also denied the suggestion that even now he is in the physical possession of the said vehicle.
25. But he has admitted the suggestion that Court Commissioner visited him and he has not produced the vehicle for inspection. At this stage, he voluntarily deposed that he has already sold the vehicle. To the question that whether he has gone through the records and got confirmed the transfer of vehicle in the name of alleged purchaser?, he has answered that the Court Commissioner on going through the record has told that RC is still continuing in his name.
26. He has denied the suggestion that since RC is in his name till date, he is responsible for the consequences with regard to the vehicle bearing registration No.KA-07 2148. He has also denied the suggestion that one Shashikumar is his friend and in collusion with his fried Shashikumar, he has got created the documents and intentionally not produced the vehicle for physical examination before the Court Commissioner. (SCCH-15) 18 MVC.179/2003
27. RW-3 is the alleged insurance surveyor/loss assessor who alleged to be examined the vehicle and given his report. He has filed his affidavit evidence wherein he has stated that 1st respondent has instructed him to verify the chassis number of the vehicle bearing registration No.KA-21/1162 (TATA-407 A/C vehicle). As per the instructions of the Divisional Manager, he visited the premises of Hoskote police station on 12.09.2014 and inspected the chassis number.
28. It is also in his evidence that at the time of inspection, he has inspected the vehicle physically and found the chassis frame punched on the vehicle chassis number as 357012MW0816770, engine number not accessible since the plate is missing and original number not found in the block; he has tried to take impression of the chassis number, but at that place body 'U' clamp was fitted.
29. It is also in his affidavit evidence that in his several years of experience in automobile survey and in his opinion with his experience of various automobiles that the chassis number might have been punched by (SCCH-15) 19 MVC.179/2003 the then owner K.Shashikumar, who was the owner at the time of accident.
30. He has also deposed that since he has observed chassis number of many tata vehicles while attending number of surveys, in his experience, he has pointed out that the punched number is different than the original Telco number (Tata Manufacture) width, length and depth; he is of the opinion that the chassis number is punched one and it is not the original chassis number.
31. It is also in his affidavit evidence that he contacted the authorized manufacturers of TATA motors ltd., Bengaluru and showed the photos of the chassis number and the Senior Divisional Manager of Insurance Company and has given letter dated 16.09.2014 to confirm genuineness of the chassis number.
32. He has also deposed that the TATA Motors Bengaluru have sent the photos to the manufacturing place Poona and they have given oral opinion that the chassis number is not at all coming in the above model vehicle. He has produced photographs he has alleged to be taken at the time of inspection at Hoskote police (SCCH-15) 20 MVC.179/2003 station premises at Ex.R-9, vehicle inspection report at Ex.R-8 and his visiting card at Ex.R-7.
33. In his in cross-examination for petitioner that he has not drawn any mahazar with regard to physical examination of the vehicle. To the question that whether he had any impediment to take the signature of persons alleged to be present at the time of physical examination for which he has deposed that he did not take.
34. To the question to the effect that since he has stated in his affidavit evidence at para No.4, because of "U" clamp, he could not see the number and thereby he could not take the photographs as well?, for which he has deposed that he took the photographs and he has voluntarily deposed that number comes prior to "U" clamp.
35. He has denied the suggestion that he has not taken photographs of the original chassis number on the vehicle. At this stage, he voluntarily deposed that generally for 407 vehicles the original chassis number punched on the left side of the chassis frame, but in the present case, it was punched on the center portion. (SCCH-15) 21 MVC.179/2003
36. It is also in his cross-examination that he did not see who made the alleged punch; he cannot say the age of punching; prior to 12.09.2014, he did not examine the present vehicle at any point of time. He has denied the suggestion that whatever he has stated in para No.6 of his affidavit evidence with regard to the alleged opinion given by Tata Company are all false. He has also denied the suggestion that he has created and produced the false documents and photographs and he has not done physical examination as he has stated in his affidavit evidence.
37. It is in the evidence of CW-1/the court commissioner that after completion of his commission work, he has submitted his report with annexure on 25.09.2014 before this Tribunal as per Ex.C-1 to 10. It is in his cross-examination for 1st respondent that he has examined the vehicle bearing No.KA-21/1162 i.e. the insured tempo; there was no engine number and the chassis number was there.
38. At this stage, he has voluntarily deposed that but the chassis number was not in the place where it is (SCCH-15) 22 MVC.179/2003 required to be. At this stage, he again voluntarily deposed that in the particular class of vehicle i.e. 407 goods carriage, generally, the chassis number would be punched in the center of the chasses, but it was in the front portion of the vehicle, he has examined.
39. Basing on his above voluntary statement a question is posed to him to the effect that since as per his evidence, the chassis number was punched in the front portion, it is re-punched, for which he has answered that he is not an expert to give answer and it is only the company people who can answer.
40. It is also in his cross-examination despite of his due efforts, he could not secure/seize another vehicle i.e. vehicle bearing registration No.KA-07/2148. Of course, it is suggested to him that in collusion with the RC owner, even he was able to seize the vehicle, intentionally he did not seize it. The said suggestion is denied by him.
41. At this stage, it is significant to note that the present RC owner i.e. as on the date of execution of commission warrant is examined before this Tribunal on behalf of 1st respondent itself as RW-2 who in categorical (SCCH-15) 23 MVC.179/2003 terms has deposed that he had sold away the vehicle; he did not produce the vehicle before the court commissioner and he came to know that the RC of the said vehicle even now stands in his name by the court commissioner only. So, the collusion between the court commission and the RC owner alleged by 1st respondent holds no water.
42. If the documents produced by 2nd respondent are taken note off, Ex.R-1 is the surveyor report. The contents therein are nothing very much corroborating with the additional statement of 1st respondent rather the contents of the additional statement of objections of 1st respondent observed above are nothing but replica of Ex.R-1.
43. But it is important to note that Ex.R-1 is exhibited through RW-1 i.e. the then senior assistant of the 1st respondent. As per the pleadings of the 1st respondent, it came to know about the alleged manipulation i.e. re-punching of chassis and engine number only when their surveyor physically examined the vehicle with regard to the damages it had suffered to (SCCH-15) 24 MVC.179/2003 settle the own claim damages i.e. basing on the report of the surveyor at Ex.R-1.
44. So, in the facts and circumstances of the case, it is the said surveyor i.e. the author of Ex.R-1, Sri.S.N.Venugopal is the best witness to substantiate the defence of alleged manipulation of engine and chassis number. As per the pleadings of 1st respondent, it is the said surveyor Sri.S.N.Venugopal who is the person first inspected the vehicle and came to know about the alleged manipulation. But for the reasons best known to 1st respondent, it has not chosen to examine him before this Tribunal which is very much fatal to its defence.
45. Admittedly the witnesses examined on its behalf before this Tribunal to substantiate its defence of alleged manipulation are RWs-1 to 3. RW-1 is as observed above the then senior assistant of 1st respondent whose evidence on the alleged manipulation is admittedly based only on the report of surveyor at Ex.R-1.
46. RW-2 is the present RC owner of the vehicle bearing registration No.KA-07/2148 i.e. the vehicle alleged involved in the present accident as per the (SCCH-15) 25 MVC.179/2003 contention of 1st respondent. But there is not even a suggestion for 1st respondent with regard to their case that it is the above vehicle i.e. KA-07/2148 which is involved in the present accident.
47. Of course, it is suggested that in collusion with the then RC owner i.e. the insured 2nd respondent who is his friend, he got created the documents and even he is in possession and occupation of the said vehicle, he has not produced the same before the court commission for examination. But no suggestion with regard to its i.e. the vehicle No.KA-07/2148's involvement in the accident.
48. The other witness is RW-3, the alleged surveyor/loss assessor who has admittedly alleged to be examined the vehicle in the premises of Hoskote police station on 12.09.2014 i.e. after the court commissioner seizing the vehicle to execute the commission warrant and kept the same in the premises of Hoskote police station that too on the very day on which the commissioner executed the commission work as per the commission report at Ex.C-1.
(SCCH-15) 26 MVC.179/2003
49. So, it appears that to ascertain the truth in the commission report, the insurance company i.e. 1st respondent simultaneously at the time of execution of commission work took its surveyor as well and got examined the vehicle through him. But it is important to note that the said examination of RW-3 and the court commissioner was done on 12.09.2014 i.e. almost around 12 years from the date of accident i.e. 10.12.2002.
50. It is in the evidence of both RW-3 and the court commissioner that the engine fitted in the vehicle at the time of examination had no number and the court commissioner has stated to the court question that the engine fitted in the vehicle at the time of accident is different one.
51. Neither RW-3 nor court commissioner deposed that whether chassis can be changed i.e. whether there is possibility of fitting different chassis as of engine. Of course, RW-3 has deposed the width, length and depth of punching he had observed in the vehicle reveal that it is not the original punching.
(SCCH-15) 27 MVC.179/2003
52. Court commissioner has also deposed that generally the chassis number in the class of vehicle i.e. 407 vehicles would be punched in the center of chassis but in the vehicle he had inspected it was punched in the front portion.
53. However, both of them have deposed that it is only the company people who can say whether the punching of the chassis found in the vehicle examined is whether original punching or not. But, despite of sufficient time and opportunity, 1st respondent not chosen to examined the company people.
54. For that matter it is also in the evidence of RW-3 that he had showed the photographs of the vehicle examined to the Bengaluru dealer who had orally stated that the punching is not original and sent the photographs to the manufacturing unit at Pune. But no evidence is produced before this Tribunal to substantiate the same.
55. The other documents are Ex.R-2 to 4, the B register extracts of both the vehicles. There is no dispute between the parties with regard to the said documents. (SCCH-15) 28 MVC.179/2003 Ex.R-5 is the alleged statement of the cleaner Manjunath. The contents therein reveal that the said statement was given by the said Manjunath at the time of inspection of the vehicle by surveyor i.e. S.N.Venugopal on 10.02.2002. But the author of the said document at least the surveyor before whom the said statement alleged to be given are not examined before this Tribunal.
56. Ex.R-6 is the impression of chassis alleged to be taken by the surveyor at the time of vehicle examination on 10.02.2002. But once again the surveyor is not examined. Ex.R-7 is the visiting card of RW-3. Ex.R-8 is the report of RW-3 and Ex.R-9 are the photographs taken by RW-3 at the time of his examination of the vehicle. The photographs at Ex.R-9 and the photographs produced by the court commissioner at Ex.C-10 series with his report are one and the same.
57. Ex.R-10 are also the photographs of the vehicle alleged to be examined. But they are not tallying with the photographs at Ex.R-9 and C-10 series. Therefore, those photographs cannot be relied on. Therefore, in view of the above observations, 1st respondent has failed to establish (SCCH-15) 29 MVC.179/2003 its defence on manipulation of chassis and engine number and thereby its defence of non involvement of the insured tempo in the accident.
58. Per contra, if the documents produced by the petitioner in support of his oral evidence are taken note off, he has produced the police papers at Ex.P-1 is true copy of FIR, Ex.P-2 is MV report, Ex.P-3 is sketch, Ex.P-4 is charge sheet and Ex.P-9 is his statement before investigating officer categorically reveal that jurisdictional police have initially registered criminal case against the tempo bearing registration No.KA-21/1162 for the offences punishable under Section 279, 337 and 304A of IPC.
59. It is also there in the police papers that the said vehicle i.e. the insured tempo is examined by MV inspector, who has given his report at Ex.P-2 and after investigation, the tempo driver is charge sheeted for the offences punishable under Sections 279, 337, 338 and 304A of IPC.
60. Even 1st respondent has contended that there is false implication of the vehicle, there is no cross- (SCCH-15) 30 MVC.179/2003 examination on its behalf about the police papers which are in consonance with the case of petitioner. Apart from that there is presumption with regard to the police papers that they are prepared by the investigating officers while discharging their official duties in investigation of a crime. Of course, the said presumption is rebuttal one. But no such rebuttal evidence is let in by 1st respondent.
61. So far petitioner suffering injuries in the accident, petitioner with his oral evidence has also got adduced the oral evidence of PW-2, the doctor who has treated and assessed the disability. In addition, he has also produced the medical record such as wound certificate, medical certificate, referral card, discharge summary, OPD slip, prescriptions, medical bills etc. during his evidence.
62. Apart from that in the evidence of PW-2, petitioner got produced the case sheet and X-rays films. All the medical records and the oral evidence of PW-2 are in support of the case of petitioner about his suffering injuries in the present accident.
(SCCH-15) 31 MVC.179/2003
63. Moreover, if the cross-examination done for 1st respondent to both petitioner and the doctor is taken note off, even it has raised objections with regard to the nature of injuries and treatment as well as quantum of disability and the medical expenses, it has not at all disputed the fact of petitioner suffering injuries in the present accident.
64. Hence, petitioner with his oral evidence and the supportive evidence of PW-2 as well as the police papers and the medical records observed above, has successfully proved that the accident took place on the negligent driving of the insured tempo driver and he has suffered injuries in the present accident. Hence, issue No.1 is answered in affirmative.
65. ISSUE No.2:- In view of answering issue No.1 in affirmative, petitioner is of course entitled for compensation. Now in respect of quantum. It is the case of the petitioner that he was aged 43 years, was a sericulturist and businessmen; had income of Rs.10,000/- p.m. (SCCH-15) 32 MVC.179/2003
66. To establish his age, petitioner has not produced any supportive document. However, it is in the police papers and in the medical records that he was aged 45 and 55 years respectively. There is no cross- examination by other side with regard to the age of petitioner mentioned in those documents.
67. However, in view of contradictory evidence in the document i.e. charge sheet and medical records produced by petitioner himself, it is thought just and proper to take the age of petitioner in between at 50 yeas, for which the appropriate multiplier applicable is 13.
68. To prove his avocation and income, petitioner has produced sericulture passbook at Ex.P-13 which is in his name wherein it is stated that petitioner has obtained necessary licence. It is in the statement of petitioner at Ex.P-9 that he is an agriculturist and it is in the charge sheet at Ex.P-4 that he is a coolie.
69. Even for the sake of arguments Ex.P-13 is accepted then also there is no evidence with regard to the quantum of income. Therefore, considering the age of petitioner, nature of avocation as well as cost of living on (SCCH-15) 33 MVC.179/2003 the date of accident, it is thought just and proper to take notional income of the petitioner at Rs.4,500/- p.m.
70. It is the case of the petitioner that in the accident he has suffered fracture of pelvis, compression T-12 vertebra & fracture of TL spine, fracture of 9th rib left, traumatic para-parasis, as per discharge summary. He took treatment by doctors of Government hospital, Chikkaballapura, K.C.General hospital, Bengaluru; he was treated as an inpatient from 10.12.2002 and till date he is on follow up treatment.
71. It is also his case that he has become permanently disabled because of accidental injuries. Petitioner has reiterated the above petition averments in his affidavit evidence. During his cross-examination, his chief evidence is denied by way of suggestions which are in turn denied by him.
72. PW-2/the doctor has filed his affidavit evidence wherein he has stated that petitioner came to him to the K.C.General hospital on 12.12.2002 with the history of RTA dated 10.12.2002; on examination it is found that (SCCH-15) 34 MVC.179/2003 petitioner has tenderness over left lower chest with weakness of the para-parasis of lower limbs.
73. He has also deposed that x-ray of the chest left oblique view and x-ray of TLS spine were taken, which reveals fracture compression, T-12 vertebra and fracture 9th rib and on examination spinal movements are restricted and painful.
74. He has also deposed that power in the right and left lower limb hip flexion grade II, knee flexion- grade II, extension for both knee and hip - grade III. Normal should be grade-V, ankle Dorsiflexion grade-0, planter flexion - grade-0.
75. It is also in his evidence that compression fracture of T-12 is about one third indicating unstable type of fracture and petitioner was advised absolute bed rest. He was also advised to wear tharoco lumber brace and treated conservatively and was discharged on 06.01.2003 with an advise to take follow up treatment.
76. It is also in his affidavit evidence that he has examined petitioner for assessment of disability on 13.02.2005. On clinical examination and radiological (SCCH-15) 35 MVC.179/2003 examination as well as on complaints of petitioner, it is found that petitioner is having permanent physical impairment to the whole body at 30% because of disability he has due to above observed fracture.
77. In his cross-examination, he has deposed that he has examined the petitioner on 12.12.2002 and taken x-rays on 13.12.2002 subsequently. He has treated the petitioner conservatively and discharged on 06.01.2003. Petitioner took regular follow up treatment and the same is not mentioned in his affidavit evidence and because of physiotherapy, condition of the petitioner was improved and condition was improved from grade I to grade V.
78. If the documents produced by petitioner are taken into consideration, Ex.P-5 is wound certificate issued by Government hospital, Chikkaballapur which reveals that petitioner was brought to their hospital on 11.12.2002 at 8:40 a.m. with the history of RTA on 10.12.2012.
79. It is also there that case was registered in MLC and on examination of petitioner, it is found that petitioner has pain in the left side of chest and both hip (SCCH-15) 36 MVC.179/2003 and joint. Cut lacerated wound over left eyebrow, tenderness over left hip and radius 8th to 10 ribs, spinal injury, fracture of ribs and pelvis were confirmed by x- ray.
80. Ex.P-6 is the medical certificate issued by K.C.General hospital which reflects the injuries observed above. Ex.P-7 is referral letter issued by Government hospital, Chikkaballapura. Ex.P-8 is discharge summary issued by K.C.General hospital which reveals the injuries observed above and the petitioner was inpatient in the hospital from 12.12.2002 till 06.01.2003 i.e. for 26 days and was treated conservatively.
81. Ex.P-15 is case sheet; Ex.P-16 is OPD card and Ex.P-17 is x-rays. All those documents are in consonance with each other and with the oral evidence of PW-2 observed above. So, if the entire evidence is taken in a nut shell, it can be safely held that petitioner has suffered fracture of compression, fracture of T-12 vertebra and fracture of ribs as well as pelvis; was treated conservatively and was in the hospital for 26 days. (SCCH-15) 37 MVC.179/2003
82. To prove the medical expenditure, petitioner with his oral evidence has produced Ex.P-10 series, totally amounting to Rs.7,940.57. All the medical bills are of K.C.General hospital and private medical stores. In view of the nature of injury suffered by petitioner and nature of treatment as well as inpatient period are taken note off, there is nothing on record to disbelieve the said medical expenses. The bills are sealed and signed in the printed form.
83. So, if the entire evidence is taken into consideration, it appears that petitioner has incurred more expenditure than of Ex.P-10. Hence, it is thought just and proper to award Rs.10,000/- towards medical expenses including the medical bills at Ex.P-10 series.
84. It is in the evidence of PW-2 that petitioner is having permanent physical impairment to the whole body at 30%. He has not stated the particular limb disability. However, considering the nature of injuries suffered by the petitioner and his age, it is just and proper to take whole body disability at 25% for calculation of future (SCCH-15) 38 MVC.179/2003 earning, loss of amenities and comfort as well as permanent physical impairment.
85. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs. 30,000/-
Loss of income during laid up Rs. 15,000/-
period, Diet, Nourishment and etc.
Attendant charges, Conveyance, Rs. 15,000/-
other Incidental Charges and etc.
Medical Expenditure Rs. 10,000/-
Loss of Future Income Rs.1,75,500/-
(4,500 x 12 x 25/100 x 13)
Loss of Amenities and Comfort Rs. 50,000/-
Permanent Physical Impairment Rs.1,00,000/-
Total: Rs.3,65,500/-
86. Petitioner has sought interest at 18% p.a. Considering the cost of living on the date of accident, it is thought fit to award interest at 6% p.a. from the date of petition till realization of the compensation amount in its entirety.
87. Now, in respect of liability. There is no dispute between the parties with regard to the fact that 2nd respondent is the RC owner and 1st respondent is the insurer of the tempo bearing registration No.KA-21/1162. There is no defence raised for 1st respondent with regard (SCCH-15) 39 MVC.179/2003 to the breach of policy conditions and it has also not let in any evidence in that regard.
88. However, the evidence on record reveals that there is no allegation in the charge sheet about any of the offences punishable under any of the provisions of MV Act particularly about the driving license and the vehicular documents.
89. So, it appears that as on the date of accident the tempo driver did possess valid and effective driving license and the tempo was also having valid and effective documents which were in order and in force. Therefore, 2nd respondent being the RC owner is liable to pay the compensation and 1st respondent being the insurer is liable to indemnify the said liability of 2nd respondent.
90. So, petitioner is entitled for compensation of Rs.3,65,500/- together with interest at 6% p.a. from the date of petition till the realization of the compensation in its entirety from 1st respondent. Issue No.2 is answered accordingly.
91. ISSUE No.3:- From the above discussions, this Tribunal proceeds to pass the following order. (SCCH-15) 40 MVC.179/2003
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.3,65,500/-
together with interest at 6% p.a. from the date of petition till the realization in its entirety from 1st respondent.
1st respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount petitioner shall deposit Rs.1,50,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in favour of the petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.500/-.
Draw a decree accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open Court by me on this the 10th day of August, 2015.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
(SCCH-15) 41 MVC.179/2003ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Subbarayappa PW2: Dr.M.S.Melinamane
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: K.Chidambaram RW2: K.A.Ramesh RW3: S.P.Pillay
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 : Certified copy of FIR with Complaint, Ex.P2 : Certified copy of IMV report, Ex.P3 : Sketch Ex.P4 : Charge sheet Ex.P5 : Wound certificate. Ex.P6 : Medical certificate Ex.P7 : Reference card Ex.P8 : Discharge summary Ex.P9 : Statement Ex.P10 : OPD slip Ex.P11 : Medical bills Ex.P12 : Telephone bills Ex.P13 : Passbook Ex.P14 : Cocoon market bills Ex.P15 : Case sheet Ex.P16: Case sheet Ex.P.17: X-rays LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
Ex.R1: Investigation report Ex.R2: B register extract KA-07-1162 Ex.R3: B register extract - KA-07-2148 Ex.R4: B register extract Ex.R5: Statement Ex.R6: Impression of engine number Ex.R7: Visiting card Ex.R8: Vehicle inspection report (SCCH-15) 42 MVC.179/2003 Ex.R9: Colour photographs of vehicle (10 in nos.) Ex.R10: Colour photographs LIST OF WITNESSES EXAMINED BEHALF OF COURT CW1: G.S.Jamaluddin LIST OF DOCUMENTS EXHIBITED ON BEHALF OF COURT Ex.C1 : Commission report with index, Ex.C2 : Certified copy of "B" register extract of vehicle bearing no.KA-21-1162 issued by RTO, Chikkaballapura i.e., Annexure-A1, Ex.C3 : Certified copy of "B" register extract of vehicle bearing no.KA-07-2148 issued by RTO, Chikkaballapura i.e., Annexure-A2, Ex.C4 : Certified copy of "B" register extract of vehicle bearing no.KA-21-1162 issued by RTO, K.R.Puram i.e., Annexure-A3, Ex.C5 : Certified copy of "B" register extract of vehicle bearing no.KA-07-2148 issued by RTO, K.R.Puram i.e., Annexure-A4, Ex.C6 : Copy of letter dtd.21.08.2014 written to RTO, Chikkaballapura i.e., Annexure-A5, Ex.C7 : Spot mahazar dtd.11.08.2014 conducted in Kanaganakoppa, Manchenahalli Hobli, Gouribidanur Taluk with regard to vehicle bearing no.KA-07-2148 i.e., Annexure-A6, Ex.C8 : Spot mahazar dtd.18.08.2014 conducted in Padali village, Shidlaghatta taluk Chikkaballapura district with regard to vehicle bearing no.KA-21-1162 i.e., Annexure-A7, Ex.C9 : Mahazar dtd.12.09.2014 conducted in the premises of Hoskote police station at the time of executing commission warrant i.e., Annaexure-A9, Ex.C10 : Colour photographs (6 in nos.) i.e., Annexure-
A10 to 15.
(K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.