Bangalore District Court
Colluding With The Owner Of The Vehicle ... vs No.2 Has Examined The Medical Clerk Of ... on 12 July, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 12th day of July, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.4667/2014
Mr. Mallikarjun, ..... PETITIONER
S/o. Basanna,
Aged about 38 years,
Residing at,
Temporary Address:
C/o. Shobha City,
Labourer's City,
Chokkanahalli Main Road,
R.K. Heggade Nagar,
Bangalore.
Permanent Address:
No.64, Ankasadoddi,
Lingsugur Taluk,
Raichur District - 584 122.
(By Sri. K. N. Harish Babu, Adv.,)
V/s
1. Sri. M. Senthil Kumar, ..... RESPONDENTS
S/o. K. Muniyandi,
No.52, Nova Residency,
Chikkanna Layout,
Maheswari Temple Road,
Mahadevapura,
Bangalore - 560 048.
(R.C. Owner of the Motor Bike
Bearing Registration No.KA-53-EF-3352)
2 M.V.C.NO.4667/2014
(SCCH-7)
2. The Divisional Manager,
ICICI Lombard General Insurance
Company Ltd.,
No.89, SVR Complex,
Hosur Main Road,
Madiwala,
Bangalore - 560 068.
(Insurance Policy
No.3005/2010772404/00/0000036026,
Valid from 13.05.2014 to 12.05.2015)
(R1- By Sri. K. Mohan, Adv.,)
(R2- By Sri. S. Maheswara, Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 10,00,000/- with interest and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 26.08.2014 at about 6.45 p.m., when he was riding the Motor Bike bearing Registration No.KA-43-H-5891, along with his wife as a pillion rider, proceeding from Shobha City and entered on R.K. Heggade Nagar Main Road, when came near Bharathi City, at that time, the rider of another Motor Bike bearing Registration No.KA-53-EF-3352, proceeding from Bharathi City side, i.e., from Bellalli side to Heggade Nagar side, was endangering human life, without observing traffic rules and regulation, dashed against his Motor Cycle and caused the accident. Due to the terrific impact, he along with the pillion rider fell down and sustained severe injuries. He sustained injuries, 3 M.V.C.NO.4667/2014 (SCCH-7) such as, Type 2 open fracture of tibia and fibula distal and mid third junction (Right) with un-displaced medial malleolis right and other multiple abrasions all over the body.
b) Immediately, he was shifted to Chirayu Hospital, Bangalore, wherein, admitted as an inpatient. X-rays were taken, the said fractures and injuries were confirmed, emergency operation was done to his leg, closed reduction was done, steel-in- plants were inserted, necessary treatment was given and discharged on 07.09.2014, with an advise of Doctor's for regular follow-up treatment, nutritious food and bed rest and also advised to undergo some more operations. Accordingly, he is under follow- up treatment.
c) Prior to the date of accident, he was hale and healthy and was doing Construction Maistri work and was earning a sum of Rupees 15,000/- per month.
d) Due to the accident and injuries sustained, he is under deep mental shock, pain and suffering, untold hardship. Due to the said disability, he cannot do any work and he has to depend on others for day to day activities.
e) The Chikkajala Traffic Police, who were informed about the accident, had registered a case as against the rider of the Motor Bike bearing Registration No.KA-53-EF-3352, in Crime No.74/2014, under Sections 279 and 337 of IPC.
f) The Respondent No.1 is the R.C. Owner of the Motor Bike bearing Registration No.KA-53-EF-3352, which was duly insured with the Respondent No.1. Hence, both the Respondents 4 M.V.C.NO.4667/2014 (SCCH-7) are jointly and severally liable to pay compensation amount of Rupees 10,00,000/- under the heads of medical expenses, conveyance and nourishment charges, mental shock, pain and suffering for mental agony, damages for the injuries sustained, for convenience and discomfort caused for permanent disability, for loss of earning etc. Hence, this petition.
3. In response to the notice, the Respondent No.1 has appeared before this Tribunal through his Learned Counsel and has filed the written statement.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 24.03.2015 passed on I.A.No.I, the written statement filed by the Respondent No.2 is taken on file.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The alleged accident was caused due to contributory negligence of the Petitioner himself and not by him.
b) The claim made by the Petitioner is very excessive and he has not given any breakups of amount spent.
c) The vehicle is duly insured in Respondent No.2 at the time of alleged accident and it is the Insurance, who has to compensate the insurer against the claims made by the Petitioner.
5 M.V.C.NO.4667/2014(SCCH-7)
d) Hence, he prayed to dismiss the claim of the Petitioner for his contributory negligence and if any award is made against him, the Insurance Company, i.e., the Respondent No.2, be directed to pay the compensation.
6. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) He does not admit the issuance of the Insurance Policy to the Motor Cycle bearing No.KA-53-EF-3352 and liability to indemnify the 1st Respondent. The liability if any, is subject to the terms and conditions of the valid policy, provisions of M.V. Act, valid and effective driving licence held by the rider of Motor Cycle, valid R.C. and also subject to the confirmation of Section 64 VB of the Insurance Act. It seeks protection under Section 147 and 149(2) of M.V. Act.
b) The owner of the vehicle is duty bound to submit all vehicular documents, including driving licence before it as mandated under Section 134(c) of the Motor Vehicle Act. There is a clear violation of the provisions of law and contract of Insurance.
c) As per Section 158(6) of M.V. Act, 1988, it is a mandatory duty of the concerned Police Station to forward all the relevant document to the concerned insurer within 30 days from the date of information, but, the Chikkajala Traffic Police Station failed to forward the documents and not complied with the statutory demand.
d) It craves leave of this Hon'ble Court to grant permission under Section 170 of M.V. Act, if the owner of the 6 M.V.C.NO.4667/2014 (SCCH-7) vehicle fails to contest the proceedings as contemplated under Section 170 of M.V. Act.
e) It called upon the Petitioner to prove and substantiate the involvement of Motor Cycle bearing Registration No.KA-53-EF- 3352 in the alleged accident. The Motor Cycle bearing Registration No.KA-53-EF-3352 was not at all involved in the alleged accident.
f) The rider/owner of Motor Cycle bearing Registration No.KA-53-EF-3352 was not holding valid and effective driving licence as on the date of accident and further was not qualified for holding or obtaining such driving licence and further not satisfied the requirement of the Rule 3 of the Central Motor Vehicles Rules, 1989. Thereby, the owner of the vehicle committed breach of terms and conditions of the policy, hence, it is not liable to pay any compensation to the Petitioner.
g) The alleged accident took place on 26.08.2014. However the complaint lodged on 28.08.2014, after the lapse of 2 days from the date of alleged accident. The Motor Cycle bearing Registration No.KA-53-EF-3352 was falsely implicated by the Petitioner colluding with the owner of the vehicle and the Police, to get the compensation from the Respondent No.2. No valid reasons assigned for the delay in lodging the complaint.
h) The Petitioner has not suffered any injuries as contended in the claim petition and the injuries suffered by him have not resulted in any disability and has not caused any financial loss. The Petitioner has not suffered any earning capacity.
7 M.V.C.NO.4667/2014(SCCH-7)
i) In the event of this Hon'ble Tribunal granting compensation, the rate of interest prevailing in Nationalized Banks for fixed deposit of one year shall be the rate of interest and it cannot exceed more than 6% per annum in view of the decision rendered by the Hon'ble Court of Karnataka in the case of Manavalagan V/s. A. Krishnamurhty and Others, reported in ILR 2004 KAR 3268.
j) The quantum of compensation claimed by the Petitioner is exorbitant and fanciful.
k) It reserves the right to file additional Written Statement under the changed circumstances of the case.
l) The Petitioner is called upon to prove that, he has not filed any claim petition before any other Court/Tribunal/Form or at any place. Hence, prayed to dismiss the claim petition.
7. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent riding of the Motor Bike bearing Reg.No.KA-53-EF-3352 by its rider and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation and damages? If so, how much and from whom?
3. What Order?
8 M.V.C.NO.4667/2014(SCCH-7)
8. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.15. On the other hand, the Respondent No.2 has examined the Medical Clerk of Chirayu Hospital as R.W.1 and his Legal Retainer as R.W.2 and has placed reliance upon Ex.R.1 to Ex.R.4. On the other hand, the Respondent No.1 has not adduced any evidence on his behalf.
9. Heard the arguments.
10. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is entitled
for compensation of Rupees
3,69,025/- with interest at
the rate of 8% p.a. (excluding
future medical expenses of
Rupees 20,000/-) from the
date of the petition till the
date of payment, from the
Respondent No.2.
Issue No.3 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner has stated in his examination-in-chief that, on 26.08.2014 at about 6.45 p.m., when he was riding the Motor Cycle bearing Registration No.KA-43-H-5891, along with his wife as a pillion rider and when they were proceeding from his work place to his 9 M.V.C.NO.4667/2014 (SCCH-7) house on R.K. Heggade Nagar Main Road, at that time, the rider of another Motor Cycle bearing Registration No.KA-53-EF-3352 came from opposite direction, with high speed, reckless, rash and negligent manner, endangering to human life, without observing traffic rules and regulations and dashed against their Motor Cycle and caused the accident. He has further stated that, due to the terrific impact, he along with his wife fell down and he sustained injury, such as, fracture of both bone with undisplaced fracture, displaced medial malleoli on right leg and other multiple abrasions all over the body. He has further stated that, immediately, he got shifted to Chirayu Hospital, Bangalore, wherein, he was admitted as an inpatient and X-rays and C.T scanning were taken and the said fractures and injuries were confirmed and after necessary treatment, he was discharged on 07.09.2014. He has further stated that, regarding the said accident, he had lodged a complaint before the Chikkajala Traffic Police Station as against the rider of Motor Cycle and after investigation, the Police had filed a charge sheet as against the rider of the Motor Cycle. He has further stated that, according to him, the said accident occurred, due to the rash and negligent riding of said opposite Motor Cycle.
12. No doubt, there is 2 days delay in lodging the complaint by the husband of the elder sister of the Petitioner in respect of the said road traffic accident, which caused to the Petitioner. Admittedly, the husband of the elder sister of the Petitioner, who lodged a complaint, has not seen the accident. Further, the Petitioner has not examined the eye witness of the said road traffic accident. Further, the P.W.1 in his cross- examination has stated that, his son-in-law Muddanagowda had lodged a complaint in Police Station as against the rider of the 10 M.V.C.NO.4667/2014 (SCCH-7) Motor Cycle after 2 days of the accident and he has not seen the accident. He has further stated that, he has not informed to the Hospital Authorities how and which vehicle caused the accident. The Petitioner has not produced the MLC register. Further, though the P.W.1 in his cross-examination has stated that, the Police have enquired him about the accident in the said Chirayu Hospital on the same day night and also next day morning, no such statement is forth coming on behalf of the Petitioner in the present petition. He has further stated that, he does not know, who has lodged Ex.P.2 Complaint. Further the Petitioner has not examined his brother-in-law, who has lodged the complaint in respect of the accident in question. He has further stated that, he does not know the name of the Respondent No.1 and what had happened in the criminal case, which is relating to the alleged accident, which is registered as against the Respondent No.1. He has further stated that, he does not know the colour of the Motor Cycle, which caused the accident to him. He has further stated that, the Respondent No.1 not approached him by stating that, don't give the complaint and he will meet all the medical expenses. Further, it is proved by the Respondent No.2 by examining the medical clerk of Chirayu Hospital as R.W.1 that, the MLC Register and Police Intimation Register relating to their Hospital in respect of the Petitioner were lost. From this, it appears that, the MLC Register and Police Intimation, which are relating to the accident in question, are not available for consideration. For lost of MLC Register and Police Intimation, the R.W.1 has produced Ex.R.2 Police Endorsement. Further, the Respondent No.2 has examined his Legal Retainer as R.W.2, who has stated in his examination-in- chief that, the Motor Cycle bearing Registration No.KA-53-EF- 3352 was not at all involved in the alleged accident and the 11 M.V.C.NO.4667/2014 (SCCH-7) complaint is lodged on 28.08.2014, i.e., after lapse of 2 days from the date of alleged accident. He has further stated that, the Motor Cycle bearing Registration No.KA-53-EF-3352 was falsely implicated by the Petitioner colluding with the owner of the vehicle and the Police, to get the compensation from the Insurance Company and no valid reasons assigned for the inordinate delay in lodging the complaint.
13. But, based on the said grounds, the above said oral version of P.W.1, which has been stated by him in his examination-in-chief, cannot be thrown away, as, to consider his case as well as his oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Charge Sheet, Ex.P.4 Spot Hand Sketch, Ex.P.5 Spot Panchanama, Ex.P.6 MVI Report, Ex.P.7 Wound Certificate, Ex.P.8 Discharge Summary, Ex.P.9 Notarized Xerox Copy of Driving Licence relating to him and Ex.P.12 X-ray Films 2 in numbers, which clearly disclosed that, at the time of accident, the Petitioner was having a valid driving licence to ride the Motor Cycle and when he was proceeding as a rider on the Motor Cycle bearing Registration No.KA-43-H-5861 along with his wife as a pillion rider on R.K. Heggade Nagar Main Road, the Respondent No.1 was riding the offending Motor Cycle bearing Registration No.KA-53-EF-3352 with very high speed, rash and negligent manner and dashed to the said Motor Cycle bearing Registration No.KA-43-H-5891, wherein, the Petitioner was proceeding and if the Respondent No.1 had taken a little care while riding the offending Motor Cycle at the time of accident, he could have avoided the said road traffic accident and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and due to the said impact, the 12 M.V.C.NO.4667/2014 (SCCH-7) Petitioner and his wife were fell down along with the Motor Cycle and the Petitioner had sustained grievous injuries and by admitting as inpatient from 26.08.2014 at 7.30 p.m., itself i.e., immediately after the accident, he took treatment to the said accidental injuries at Chirayu Hospital till 07.09.2014 and immediately after the admission of the Petitioner in Chirayu Hospital, the said Hospital Authority had issued an intimation to the Sub-Inspector of Police, Chikkaballapura, by stating that, road traffic accident occurred opposite to Shoba City, the Petitioner has been brought to their Hospital on 26.08.2014 at 7.00 p.m. through his relative, which is clear from the following discussion. Further, in Ex.R.3 Letter dated 26.08.2014, issued by Chirayu Hospital to the Sub-Inspector of Police, Chikkajala clearly disclosed that, on 26.08.2014 at 7.00 p.m., itself, the Petitioner was admitted in the said Hospital to take treatment to the said accidental injury and immediately after his admission, the MLC intimation was issued by the said Chirayu Hospital Authority to the concerned Police. Further, the P.W.1 in his cross-examination has clearly stated that, after the accident, he was shifted to Chirayu Hospital for treatment and his wife has informed about the accident to the said Hospital Authority and the registration number of the vehicle, which caused the accident to him and to his brother-in-law and the Police have enquired him about the accident in the Hospital and his wife informed to the Police about the accident. He has further clearly stated that, one person on behalf of the Respondent No.1 visited him in the Hospital after 2 days of the accident. Further, the Petitioner has examined one of the treated Doctors as P.W.2, who has clearly stated about the nature of injuries sustained by the Petitioner in the said road traffic accident, which caused to him on 28.02.2014 at 6.45 p.m. 13 M.V.C.NO.4667/2014 (SCCH-7) and the admission of the Petitioner in their Hospital at 7.00 p.m. itself. Further, the R.W.2 in his cross-examination has shown his ignorance during the course of cross-examination that, he does not know that, on the same day of accident, at 7.30 p.m., the Petitioner was admitted in the Hospital to take treatment to the said accidental injuries. Except the oral version of R.W.2, the Respondent No.2 has not produced any believable and acceptable material documents to show that, the offending Motor Cycle bearing Registration No.KA-53-EF-3352 as well as its rider, i.e., the Respondent No.1, who was also a registered owner of the said offending Motor Cycle, never involved in the said road traffic accident. In this regard, the R.W.2 has stated in his cross- examination that, he has not produced any documents to show that, the offending Motor Cycle bearing Registration No.KA-53-EF- 3352 not at all involved in the alleged accident. He has further clearly stated that, since, the owner of the offending Motor Cycle has not properly responding and no documents are secured during the course of investigation and based on that grounds, he has stated that, the said Motor Cycle was not at all involved in the alleged accident. He has further clearly stated that, he has not verified the documents produced by the Petitioner in the present petition and they have not taken any legal action in respect of a false complaint, which is lodged in respect of the alleged accident and they have not complained before the Medical Councilor in respect of no grievous injuries sustained by the Petitioner in the alleged accident. He has further clearly stated that, the complaint is not lodged by the injured, i.e., the Petitioner and the Police have filed a charge sheet as against the rider of the offending Motor Cycle. From the said evidence of R.W.2, it is made crystal clear that, nothing is available on record on behalf of the Respondent 14 M.V.C.NO.4667/2014 (SCCH-7) No.2 to consider its specific defence. More so, though the Respondent No.1, who was a registered owner-cum-rider of the offending Motor Cycle bearing Registration No.KA-53-EF-3352, has filed the written statement to contest the case of the Petitioner, inspite of giving sufficient opportunities, he has not adduced any evidence to consider his specific defence. Even, the Respondent No.1 has not cross-examined the P.W.1. From this, it is further made crystal clear that, nothing is available on record on behalf of the Respondent No.1 also to deny or to discard the case made out by the Petitioner as well as the evidence adduced by him to consider his case, as against the Respondents.
14. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the husband of the elder sister of the Petitioner has lodged Ex.P.2 Complaint before the Chikkajala Traffic Police as against the Respondent No.1 by alleging that, on 26.08.2014 at 6.30 p.m., the Petitioner was proceeding on his Motor Cycle bearing Registration No.KA-43-H-5891 as a rider along with his wife Akkamma and they were about to enter R.K. Heggade Nagar Main Road from Shoba City, at that time, the offending Motor Cycle bearing Registration No.KA-53-EF-3352 came from Bharati City with very high speed, rash and negligent manner by its rider, i.e., the Respondent No.1 and dashed to the said Motor Cycle and due to the said impact, the Petitioner and his wife were fell down along with the Motor Cycle and the Petitioner had sustained severe grievous injuries on his right leg and his wife had sustained simple injuries and both the Motor Cycles were damaged and with the help of the public, the Respondent No.1 has shifted the Petitioner and his wife to Chirayu Hospital for treatment and initially, he had agreed to bear the 15 M.V.C.NO.4667/2014 (SCCH-7) medical expenses and thereafter, he has refused to pay the medical expenses and as such, he prayed to take necessary legal action as against the Respondent No.1 and based on Ex.P.2 Complaint the said Police have registered a criminal case as against the Respondent No.1 for the offences punishable under Section 279 and 337 of IPC in Crime No.74/2014. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, the reason for delay in lodging Ex.P.2 Complaint in respect of the said road traffic accident is clearly explained.
15. The contents of Ex.P.4 Spot Hand Sketch, Ex.P.5 Spot Panchanama and Ex.P.6 MVI Report further clearly disclosed that, the entire negligence is on the part of the driver of the offending Motor Cycle bearing Registration No.KA-53-EF-3352 and if he could have taken a little care while riding the Motor Cycle, he could have avoided the said road traffic accident and there was no negligence on the part of the Petitioner in riding his Motor Cycle bearing Registration No.KA-43-H-5891, as, he was about to enter into the Main Road, R.K. Heggade Nagar. The damages caused to both the Motor Cycles are clearly mentioned in Ex.P.6 MVI Report, which disclosed the terrific impact of the said road traffic accident. It is also mentioned in Ex.P.6 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicles.
16. The contents of Ex.P.7 Wound Certificate disclosed that, with a history of road traffic accident, the Petitioner was admitted in Chirayu Hospital on 26.08.2014 itself and he sustained injuries over the right lower limb and type II open 16 M.V.C.NO.4667/2014 (SCCH-7) fracture of tibia and fibula with undisplaced medial malleoli (right), which are grievous in nature.
17. The contents of Ex.P.8 Discharge Summary, Ex.P.12 X- ray Films, Ex.P.13 Case Sheet and Ex.P.15 X-ray films, further clearly disclosed that, the Petitioner was admitted in Chirayu Hospital on 26.08.2014 at 7.00p.m., itself and on examination, it is finally diagnosed type II open fracture of tibia and fibula distal and mid third junction (right) with undispalced medial malleoli (right) and he was admitted in the said Hospital with a history of road traffic accident with complaint of pain and bleeding in right lower leg and not able to bear weight on right leg and by admitting as an inpatient from 26.08.2014 to 07.09.2014, i.e., for 13 days, he took treatment to the said accidental injuries in the said Hospital.
18. The P.W.2, who is one of the treated Doctors, has stated in his examination-in-chief that, on 26.08.2014 at about 7.00 p.m., the Petitioner came to their Hospital with a history of road traffic accident and he found that, he had sustained fracture of tibia and fibula distal and mid third junction with undisplaced medial malleoli right and he got admitted to the Hospital to take treatment to the said accidental injuries and discharged on 07.09.2014.
19. From the above said medical evidence, both oral and documentary, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained grievous injuries and by admitting as inpatient from 26.08.2014 to 07.09.2014, i.e., 13 17 M.V.C.NO.4667/2014 (SCCH-7) days, he took treatment to the said accidental injuries at Chirayu Hospital.
20. The contents of Ex.P.3 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to very high speed, rash and negligent manner of driving of offending Motor Cycle bearing Registration No.KA-53-EF-3352 by the Respondent No.1, the said road traffic accident was taken place on 26.08.2014 at 6.45 p.m., on R.K. Heggade Nagar Main Road, in front of Shoba City, which dashed to the Motor Cycle bearing Registration No.KA43-H-5891, wherein, the Petitioner was proceeding as a rider and his wife was proceeding as a pillion rider, from Shoba City towards R.K. Heggade Nagar Main Road, i.e., when they were entering into the said road, the said offending Motor Cycle dashed to the said Motor Cycle and due to the said impact, the Petitioner had sustained grievous injury and his Motor Cycle was badly damaged and as such, after thorough investigation, the Investigation Officer of Chikkajala Police Station has filed a charge sheet as against the rider of the Motor Cycle bearing Registration No.KA-53-EF-3352, i.e., the Respondent No.1 for the offences punishable under Section 279 and 338 of IPC. There is no allegation leveled by the Investigating Officer in Ex.P.3 Charge Sheet as against the Petitioner about his negligence in the commission of the said road traffic accident.
21. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the Respondent No.1 in riding the offending Motor Cycle bearing Registration No.KA-53-EF-3352 and there was no negligence on the part of the Petitioner in riding the Motor Cycle 18 M.V.C.NO.4667/2014 (SCCH-7) bearing Registration No.KA-43-H-5891 and the said offending Motor Cycle dashed to the Motor Cycle, wherein, the Petitioner was proceeding as a rider along with his wife as a pillion rider and due to the said impact, the Petitioner fell down along with the Motor Cycle and had sustained grievous injuries and the offending Motor Cycle bearing Registration No.KA-53-EF-3352 as well as the Respondent No.1, who is its rider, are very much involved in the said road traffic accident. Accordingly, I answered Issue No.1 in the Affirmative.
22. ISSUE NO.2 :- The Petitioner has produced Ex.P.9 Driving licence relating to him, which disclosed that, his date of birth is on 04.02.1980. The date of accident is on 26.08.2014. On perusal of the said dates, it appears that, as on the date of accident, the Petitioner was 35 years old. Hence, the age of the Petitioner is considered as 35 years at the time of accident.
23. The P.W.1 has stated that, prior to the date of accident, he was hale and healthy and was working as a Gare (construction) Mastri and earning a sum of Rupees 15,000/- per month. He has further stated in his cross-examination that, he is working at Shobha City Developers and since one year before the accident, he was working in the said Company. Except his oral version, the Petitioner has not produced any authenticated documents to consider his avocation and income at the time of accident. Even, the Petitioner has not disclosed his educational qualification. Further, the Petitioner has not produced any salary certificate, attendance register and Bank statement to show that, at the time of accident he was working as a Gare Mastri and earning a sum of Rupees 15,000/- per month. Therefore, only 19 M.V.C.NO.4667/2014 (SCCH-7) based on the said oral version of P.W.1, it cannot be believed and accept the avocation and income of the Petitioner at the time of accident as stated by him in his evidence. However, at the time of accident, the Petitioner was 35 years old and he is having wife and children, by considering the same, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 8,000/- per month at the time of accident, which is believable and acceptable one. Hence, the notional income of the Petitioner is considered as Rupees 8,000/- per month at the time of accident.
24. The P.W.1 has stated that, X-rays and C.T. Scan were taken in Chirayu Hospital and the said fractures and injuries were confirmed and emergency operation was done to his right leg, open reduction was done, steel implants were inserted and necessary treatment was given and discharged on 07.09.2014 with the advise of Doctor for regular follow-up treatment, bed rest and nutritious food.
25. The P.W.2 has stated that, the Petitioner underwent close reduction and implants fixed by surgery and he got conservative treatment and got discharged on 7.09.2014 under stable condition and he was advised for physiotherapy and follow- up treatment and he had followed the advises.
26. Based on the contents of Ex.P.7 Wound Certificate, Ex.P.8 Discharge Summary, Ex.P.13 Case Sheet and Ex.P.12 and Ex.P.15 X-ray films, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained injuries over the right lower limb and 20 M.V.C.NO.4667/2014 (SCCH-7) type II open fracture of tibia and fibula with undisplaced medial malleoli (RT), which are grievous in nature and by admitting as an inpatient from 26.08.2014 to 07.09.2014, i.e., for 13 days, he took treatment to the said accidental injuries at Chirayu Hospital. It is also clearly mentioned in Ex.P.7 Wound Certificate, Ex.P.8 Discharge Summary and Ex.P.13 Case Sheet that, during the course of treatment, close reduction and IMIL nailing tibia right with wound debridement and closure and conservative management undisplaced medial malleoli fracture was done to the Petitioner and he was responding to the said treatment and discharged under stable condition with recommendation at discharge non-weight bearing, ambulation with walk, active toe movements, physiotherapy as advised, regular wound dressing and medication. From this medical evidence, it is made crystal clear that, during the treatment, implants were inserted to the fracture site of the Petitioner and at the time of discharge, he was advised to take follow-up treatment. Hence, the evidence stated by the Petitioner in respect of the line of treatment and follow-up treatment taken after discharge from the Hospital can very well be believed and accept.
27. The P.W.1 has stated that, due to the accident and injuries sustained, even today, he could not attend to his work and suffered loss of earning. He has further stated that, due to the accident and injuries sustained to him, he is under deep mental shock, pain and sufferings, untold hardship. He has further stated that, he cannot walk properly, run, squat on floor, stand for long time, lift weight, climb stair case and he has to walk only on plain ground and hence, now he could not do any work. He has further 21 M.V.C.NO.4667/2014 (SCCH-7) stated that, he is getting frequent right leg pain and he has to depend on others for his day to day activities.
28. The P.W.2 has stated that, recently, he got re- examined the Petitioner on 16.11.215, with complaints of pain over right leg on long standing and walking, cannot able to climb stair and cannot able to lift heavy objects. He has further stated that, on examination, he had found that, there was a post operative scar over right leg and X-rays reveals mal-union of the bones fracture. He has further stated that, he got examined both physically and clinically for the assessment of permanent disability of affected limb was alone as per the Ministry of Social Justice and Empowerment Government of India. He has further stated that, in his opinion and as per the text, he was suffering from 39% of disability over affected limb, which comes to 13% to the whole body, which are permanent in nature. The P.W.2 has produced Ex.P.14 Disability Calculating Sheet and Ex.P.15 X-ray Films 4 in numbers.
29. But, only based on the said oral version of P.W.1 and P.W.2 as well as the contents of the medical documents, which referred above, it cannot be believed and accept that, due to the said accidental injury, the Petitioner is suffering from 39% of disability over affected limb, which comes to 13% to whole body, which are permanent in nature, as, it is clear from the above said medical documents that, at the time of discharge, the condition of the Petitioner was stable and the same has been clearly stated by the P.W.2 in his cross-examination also. Further, the Petitioner has utterly failed to prove his avocation and income at the time of accident. Further, the P.W.2 has not specifically assessed the 22 M.V.C.NO.4667/2014 (SCCH-7) permanent physical and functional disability of the Petitioner, which is arising out of the said accidental injury. Further, the Petitioner has not produced any authenticated documents issued by his employer to show that, after the accident, he was removed from his services by his employer as he was unable to do his earlier job. Further, though the P.W.2 is one of the treated Doctors, he has not issued the disability certificate. Even, the Petitioner has not produced the disability certificate issued by the other treated Doctors or the Doctor, who is competent to issue such certificate. In view of the said reasons, the said extent of 13% whole body disability, which is permanent in nature as stated by the P.W.2 cannot be believed and accept.
30. However, in the said road traffic accident, the Petitioner had sustained injuries over the right lower limb and type II open fracture of tibia and fibula with undisplaced medial malleoli (right), which are grievous in nature and by admitting as an inpatient from 26.08.2014 to 07.09.2014, i.e., 13 days, he took treatment to the said accidental injuries and during the course of treatment, implants were inserted to the fracture site of the Petitioner and still, the Petitioner is having implants in situ and at the time of accident, the Petitioner was 35 years old, the Petitioner is definitely suffering from permanent physical and functional disability to some extent. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 10% to whole body, which is believable and acceptable one. Hence, the Petitioner is entitled for compensation under the following heads.
23 M.V.C.NO.4667/2014(SCCH-7)
31. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 10%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 10%.
32. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 35 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 16.
33. As the Petitioner is suffering from permanent physical and functional disability of 10% to the whole body. The notional income of the Petitioner is already considered as Rupees 8,000/- per month. Therefore, the loss arising out of the said 10% disability for monthly income of Rupees 8,000/- by applying multiplier 16 comes to Rupees 1,53,600/-, i.e., (Rs.8,000/- x 12 x 16 x 10%).
34. As per Ex.P.7 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained grievous injury. The Petitioner was in the Hospital as an inpatient from 26.08.2014 to 07.09.2014, i.e., for 13 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 30,000/- towards pain and suffering.
24 M.V.C.NO.4667/2014(SCCH-7)
35. As it is already observed that, the age of the Petitioner was 35 years. He has to lead remaining his entire life with 10% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
36. The Petitioner had sustained grievous injury and he was in the Hospital as an inpatient for 13 days and he could not do any work at least for 3 months and thereby, he deprived the income. Therefore, at the rate of Rupees 8,000/- per month, a sum of Rupees 24,000/- is awarded towards loss of income during the laid up period.
37. The P.W.1 has stated that, as per the advice of the Doctors, he had visited the Hospital for 25 times in Auto, by paying Rupees 250/- per trip and totally, he spent Rupees 2,00,000/- for his conveyance, nourishment and medical expenses and he lost some of the Medical Bills and prescriptions and he is herewith producing the available Medical Bills amounting to Rupees 1,05,424-86. He has further stated that, during the course of his treatment, his wife and brother-in-law were looking after him and they were working as coolie and his wife was earning a sum of Rupees 10,000/- per month and she could not attend the work for a period of 6 months and his brother-in-law was earning a sum of Rupees 15,000/- per month and he could not attend the work for a period of 2 months and suffered loss of earnings. In this regard, the Petitioner has only produced Ex.P.10 Medical Prescriptions 26 in numbers and Ex.P.11 Medical Bills 35 in numbers, which is amounting of 25 M.V.C.NO.4667/2014 (SCCH-7) Rupees 1,05,424-86. The Petitioner has taken treatment at Chirayu Hospital, wherein, he was taken treatment as an inpatient from 26.08.2014 to 07.09.2014, i.e., for 13 days. Considering the nature of the injury and line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 1,05,424-86 to the Petitioner, which is rounded off Rupees 1,05,425/-.
38. The P.W.1 has stated that, the Doctor has also advised to undergo one more operation for the removal of inserted implants, for which, he has to incur Rupees 30,000/- for his future medical, conveyance and nourishment. The P.W.2 has stated that, the Petitioner needs one more surgery for the removal of implants and the expenses will be Rupees 20,000/- to 25,000/- approximately. It is clearly mentioned in Ex.P.7 Wound Certificate and Ex.P.8 Discharge Summary about close reduction and IMIL nailing tibia right with wound debridement and closure and conservative management undisplaced medial malleoli fracture, which disclosed about the insertion of implants in situ. The said implants have to be removed and therefore, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.2 produced the estimation for removal of implants. However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 20,000/- to the Petitioner.
39. As the Petitioner was taken treatment as an inpatient for 13 days, it is necessary to award a sum of Rupees 5,000/- towards conveyance charges, Rupees 5,000/- towards attendant 26 M.V.C.NO.4667/2014 (SCCH-7) charges and Rupees 6,000/- towards food, nourishment and diet charges etc.,
40. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. Rs. 1,53,600-00 arising out of 10% Disability
2. Pain and sufferings Rs. 30,000-00
3. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
4. Rs. 24,000-00 up period
5. Actual medical expenses Rs. 1,05,425-00
6. Future medical expenses Rs. 20,000-00
7. Conveyance Rs. 5,000-00
8. Attendant Charges Rs. 5,000-00 Food, Nourishment &
9. Rs. 6,000-00 Diet charges TOTAL Rs. 3,69,025-00
41. In all, the Petitioner is entitled for total compensation of Rupees 3,69,025/- along with interest at the rate of 8% per annum on the above said sum (excluding future medical expenses of Rupees 20,000/-) from the date of the petition till payment.
42. While answering Issue No.1, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the Respondent No.1 in riding the offending Motor Cycle bearing Registration No.KA-53-EF-3352 and there was no negligence on the part of the Petitioner in riding the Motor Cycle bearing Registration No.KA-43-H-5891 and the said offending Motor Cycle dashed to the Motor Cycle, wherein, the Petitioner was proceeding as a rider along with this wife as a pillion rider and due to the said 27 M.V.C.NO.4667/2014 (SCCH-7) impact, the Petitioner fell down along with the Motor Cycle and had sustained grievous injuries and the offending Motor Cycle bearing Registration No.KA-53-EF-3352 as well as the Respondent No.1, who is its rider, are very much involved in the said road traffic accident.
43. The Petitioner in the cause title of the petition has mentioned that, the Respondent No.1 is a R.C. Owner and the Respondent No.2 is an insurer of the offending Motor Cycle bearing Registration No.KA-53-EF-3352 and its Insurance Policy No.305/20177244/00/0000036026, Valid from 13.05.2014 to 12.05.2015. The Respondent No.1, who is a rider-cum-owner of the offending Motor Cycle bearing Registration No.KA-53-EF-3352, has clearly admitted in his written statement that, the said vehicle is duly insured with the Respondent No.2 at the time of alleged accident and it is the Insurance, who has to compensate the Insurance against the claims made by the Petitioner. Though, the Respondent No.2 has denied the issuance of Insurance Policy to the said offending Motor Cycle bearing Registration No.KA-53-EF- 3352, in his written statement, he has produced Ex.R.4 Insurance Policy through R.W.2, which clearly disclosed that, at the time of accident, the Insurance Policy relating to the offending Motor Cycle bearing Registration No.KA-53-EF-3352 was valid at the time of accident, which covers the date of accident. From this material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was a Owner-Cum-Driver and the Respondent No.2 was an Insurer of offending Motor Cycle bearing Registration No.KA-53-EF-3352 and its Insurance Policy was valid, which covers the date of accident. There is no allegation leveled by the Investigating Officer in Ex.P.3 Charge Sheet as 28 M.V.C.NO.4667/2014 (SCCH-7) against the Respondent No.1 that, at the time of accident, he was not having a valid and effective driving licence to ride such class of offending Motor Cycle. The violation of the terms and conditions of Ex.R.4 Insurance Policy by the Respondent No.1 is not proved by the Respondent No.2. Under such circumstances, the Respondent No.1 being Owner-Cum-Rider and the Respondent No.2 being an Insurer of the offending Motor Cycle bearing Registration No.KA- 53-EF-3352, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since, the Respondent No.2 is an insurer, it shall indemnify the Respondent No.1. Hence, Issue No.2 is answered accordingly.
44. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 3,69,025/-
with interest at the rate of 8% p.a. (excluding future medical expenses of Rupees 20,000/-) from the date of the petition till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and interest in 29 M.V.C.NO.4667/2014 (SCCH-7) this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, 80% shall be released in the name of Petitioner through account payee cheque, on proper identification.
Remaining 20% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 12th day of July, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED2 BY THE PETITIONER :-
P.W.1 : Sri. Mallikarjun
P.W.2 : Dr. Rangarajan
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
30 M.V.C.NO.4667/2014
(SCCH-7)
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Charge Sheet
Ex.P.4 : True copy of Spot Hand Sketch
Ex.P.5 : True copy of Spot Panchanama
Ex.P.6 : True copy of MVI Report
Ex.P.7 : True copy of Wound Certificate
Ex.P.8 : Discharge Summary
Ex.P.9 : Notarised Xerox copy of Driving Licence
relating to Mallikarjun
Ex.P.10 : Medical Prescription
Ex.P.11 : Medical Bills (35 in nos.)
Ex.P.12 : X-ray films (2 in Nos.)
Ex.P.13 : Case Sheet
Ex.P.14 : Disability Calculating Sheet
Ex.P.15 : X-ray Films (4 in nos.)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Sri. Ambarish
R.W.2 : Sri. Jathin Kumar
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Authorisation Letter
Ex.R.2 : Police Endorsement
Ex.R.3 : True copy of Police Intimation dated
26.08.2014
Ex.R.4 : True copy of Insurance Policy
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.