Bangalore District Court
Is Not Ordinary Resident Of Bangalore ... vs Has Violated The Terms And Conditions Of ... on 18 April, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 18th day of April, 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.5350/2014
Nataraju, ..... PETITIONER
S/o. Chikkalingaiah,
Aged about 38 years,
R/at No.46, 7th Main,
Ramakrishna Layout,
Harihara Nilaya,
Nagarabhavi 2nd stage,
Bangalore-91.
(By Sri.B.K.Kumara Adv.,)
V/s
1. The Manager, ..... RESPONDENTS
Shriram General Insurance
Company Limited,
S.N.S. Corner Building,
3rd Floor,
Opp: to Bowring Hospital,
Shivajinagar,
Bangalore-27.
(Insurer of offended vehicle Lorry
bearing No.KA-22-A-7930)
2. Mr. Mallappa. S. Kochchargi,
A/P: Urabinattigokakt,
Gokak Taluk,
Belgaum District.
(R.C. Owner of offended vehicle Lorry
bearing No.KA-22-A-7930)
2 M.V.C.NO.5350/2014
(SCCH-7)
3. Mr.Munir Shaik,
No.3966, Kakatives,
Belgaum Taluk and District.
(Previous R.C. Owner of offended vehicle
Lorry bearing No.KA-22-A-7930)
(By R-1 Sri. B. R. Murthy, Adv.,)
(By R-2 Sri. Prabhakar. L. Shetty, Adv.,)
(By R-3 Exparte)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 to 3 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 20,00,000/- with interest at the rate of 12% p.a., and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 19.09.2014 at about 4.00 p.m., he was riding a Motor Bike bearing Registration No.KA-06-ER-3802 along with his friend, namely, Chennabasavaiah as a pillion rider, on NH-04 Bangalore-Tumkur Road, Opposite to Sannappanapalya, very carefully, cautiously and observing all the traffic rules. At that time, one Lorry bearing Registration No.KA-22-A-7930, driven by its driver at a very high speed in a rash and negligent manner so as to endangering to human life came from Bangalore side towards Tumkur and dashed as against his riding Motor Bike. As a result, he and pillion rider were fell down along with Motor Bike and sustained injury and both the vehicles are badly damaged. He sustained head injury, fracture of right femur, fracture of Right leg Knee, Avulsion injury over right leg both bones and other injuries all over the body.
3 M.V.C.NO.5350/2014(SCCH-7)
b) Immediately, he was shifted to Tumkur General Hospital by the 108 Ambulance, wherein, first-aid was given and then, he was shifted to NIMHANS Hospital for head injury treatment, whereat, he was treated and necessary examination was done and then, he was shifted to Sanjay Gandhi Hospital for further treatment. Whereat, he was treated as an inpatient. X-ray was taken and above said fractures and injuries were confirmed. The Doctor, who had treated him opined that, those injuries caused permanent in nature and advised to undergo an operation. During the stay in Hospital, he had operated and internal fixation was inserted to his right femur fracture site and right knee cap was replaced. The Doctor further advised that, if fracture is not united properly, his leg will be amputed in order to save his life. Still he is under treatment. He had incurred huge amount for his treatment, conveyances and nourishment etc., Wherefore, he reserves his rights to furnish additional losses etc.,
c) Prior to accident, he was very hale and healthy and doing coolie work and earning sum of Rs.600/- per day. Due to these accidental injuries, he could not attend his work so far and he became permanent disabled. Now, he is fully depending upon others in all day to day activities. Hence, he and his family members are put to great hardship and mental agony.
d) The Kyathasandra Police have registered a case as against the driver of Lorry bearing Registration No.KA-22-A-7930, for the offences punishable under Sections 279 and 337 of IPC. In turn, the Police have taken up investigation and after investigation, the said Police have filed a Charge Sheet as against the driver of Lorry. This accident happened due to sole, rash and negligent manner of driving of the said Lorry by its driver.
4 M.V.C.NO.5350/2014(SCCH-7)
e) At the time of accident, First Respondent was insurer and 2nd Respondent was R.C. Owner of the said Lorry. Driver was in the course of employment under the 2nd Respondent, holding a valid and effective driving licence. Therefore, both the Respondents are jointly and severally liable to payment of compensation. Hence, this petition.
3. Initially, though the notice was duly served on the Respondent No.1, he was remained absent and hence, he was placed as exparte on 06.02.2015. Later, the Respondent No.1 has appeared before this Tribunal through his Learned Counsel and as per the Order dated 20.03.2015 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.1 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 26.06.2015 passed on I.A.No.II, the written statement filed by the Respondent No.1 is taken on file.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel and has filed the written statement.
5. Though the notice was duly served on the Respondent No.3 through paper publication, he was remained absent and hence, he is placed as exparte on 22.04.2015.
6. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) He is the insurer of Lorry bearing Registration No.KA- 22-A-7930 and the liability of it, is subject to the terms and conditions of the policy of the Insurance, provisions of the Motor 5 M.V.C.NO.5350/2014 (SCCH-7) Vehicles Act and valid F.C. and R.C. and valid and effective driving licence held by the driver of Lorry as on the date of the alleged accident.
b) The 2nd Respondent is duty bound under Section 134(c) of the Motor Vehicles Act, to inform the accident and submit all vehicular documents including the Driving Licence, Permit, R.C., F.C. and the insurance particulars to him to seek indemnification. It has failed and neglected to perform the statutory obligation to seek indemnification. Violation of Motor Vehicles Act in this regard and also the terms and conditions of the contract would disentitle the Second Respondent to claim indemnification from him. As such, the claim petition deserves to be dismissed as against him on this above score alone.
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 documents to the concerned insurer within 30 days from the date of information, but, Kysthasandra Police Station failed to forward the documents and not complied with the statutory demand. Under these circumstances, the entire claim petition deserves to be dismissed.
d) Without prejudice to the contentions raised above, he craves leave of this Hon'ble Tribunal under Section 170 of the Motor Vehicles Act to urge all the grounds that are expressly open for the insured/2nd Respondent, if the insured fails to contest the case effectively.
e) Without prejudice to the contentions raised above, the present case is liable to be dismissed as this Hon'ble Tribunal does not have jurisdiction under Section 166 of M.V. Act since the 6 M.V.C.NO.5350/2014 (SCCH-7) Petitioner is not ordinary resident of Bangalore and accident took place on Opp: Sannappanapalya, Bangalore-Tumkur NH-04 Road, Ordigere Hobli, Tumkur and policy issuing Office also at Jaipur, Rajasthan.
f) The 2nd Respondent knowing fully well that, the driver was not having a valid and effective driving licence authorizing him to drive class/type of vehicle allegedly involved in the alleged accident as on the date of alleged accident, without having valid F.C., Permit, he had entrusted his Lorry to such a person to drive at the time of accident in such a condition. The Second Respondent has violated the terms and conditions of the policy and the provisions of the Motor Vehicles Act by entrusting consciously his Lorry to the driver, who did not possess a valid and effective Driving Licence without having valid permit and F.C. at the time of accident.
g) Without prejudice to the contentions raised above, he puts the Petitioner to strict proof of the involvement of Lorry bearing Registration No.KA-22-A-7930 and alleged actionable negligence on the part of the driver of Lorry bearing Registration No.KA-22-A-7930 in respect of the alleged accident dated 19.09.2014 at about 4.00 p.m., said to have occurred Opp:
Sannappanapalya, Bangalore-Tumkur NH-04 Road, Ordigere Hobli, Tumkur. The Petitioner is called upon to prove and substantiate that, he was driving his Motor Cycle bearing Registration No.KA-06-ER-3802 on the road carefully and cautiously by observing the traffic rules and regulation at that point of time, the driver of Lorry bearing Registration No.KA-22-A- 7930 came in a rash and negligent manner with high speed from opposite side and dashed as against the Petitioner Motor Cycle 7 M.V.C.NO.5350/2014 (SCCH-7) bearing Registration No.KA-06-ER-3802, due to the said impact, the Petitioner fell down and sustained grievous injuries. As per the ratio laid down by the Hon'ble Supreme Court of India in the case of National Insurance Company Limited V/s. Prembai Patel and Others, reported in 2005 ACJ 1323, the Petitioners have to prove and substantiate that, he was no negligent and was not responsible for the accident. It can be safely gathered that, the Petitioner was driving his Motor Cycle bearing Registration No.KA- 06-ER-3802 in a rash and negligent and zigzag manner and on the center of the road and dashed the Lorry bearing Registration No.KA-22-A-7930 and due to Petitioner negligent act the accident took place. No actionable negligence can be attributed as against the driver of Lorry bearing Registration No.KA-22-A-7930. The Petitioner was solely responsible for the accident. Under these circumstances, the Petition is liable to be dismissed as non- joinder of necessary parties, i.e., Insured and Insurer of Motor Cycle bearing Registration No.KA-06-ER-3802. The Petitioner is called upon to produce the copy of his driving licence to ride Motor Cycle.
h) Without prejudice to the contentions raised above, the Petitioner is called upon to prove his age, loss of income, nature of injuries, nature of treatment, period of treatment and the amount spent towards medicine.
i) He reserves the right to file Additional written statement under the changed circumstances of the case.
j) The Petitioner is called upon to prove that, he has not filed the claim petition before any other Court/Tribunal/Forum at anywhere on the same cause of action.8 M.V.C.NO.5350/2014
(SCCH-7)
k) He is not liable to pay any compensation or interest in respect of the present claim petition as the Second Respondent has violated the terms and conditions of the policy and the provision of the Motor Vehicles Act by entrusting his Lorry to drive, who did not possess a valid and effective driving licence without having valid permit, F.C., at the time of accident and due to the negligent act of the Petitioner, the accident took place, hence, the claim petition is liable to be dismissed as against him. Hence, prayed to dismiss the claim petition.
7. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition filed by the Petitioner is not maintainable either under law or on facts.
b) It is admitted that, the Respondent No.2 is the owner of the said vehicle and the Respondent No.1 is the insurer of the said vehicle in Policy No.10003/31/14/441982, valid from 18.10.2013 to 17.10.2014.
c) He is admitted that, the first Respondent is insurer and the second Respondent is the owner of the vehicle in question.
d) He is not liable to pay any compensation either severally or jointly as claimed by the Petitioner.
e) The Petitioner is not liable for any compensation much less claimed in the petition.
9 M.V.C.NO.5350/2014(SCCH-7)
f) The vehicle was in fit condition and the driver of the vehicle had valid driving licence as on the date of the alleged accident.
g) Without prejudice to above contentions, the said vehicle is insured with the Respondent No.1, as on the date of accident and the said vehicle has valid Insurance Policy. If at all, this Hon'ble Tribunal come to a conclusion that, the Petitioner is entitled for compensation, the Respondent No.1 is responsible for the same. Hence, prayed to dismiss the petition.
8. 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 driving of the Lorry bearing Reg.No.KA-22-A-7930 by its driver 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?
9. 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.14. On the other hand, the Respondents No.1 has not adduced any oral evidence, but, he has placed reliance upon Ex.R.1. On the other hand, the Respondent No.2 has not adduced any evidence on his behalf.
10 M.V.C.NO.5350/2014(SCCH-7)
10. Heard the arguments. The Learned Counsel appearing for the respondent No.1 has filed the written arguments.
11. In support of the submission, the Learned Counsel appearing for the Petitioner Sri. B.K.Kumara has placed reliance upon the decisions reported in,
i) 2014 ACJ 627 (Syed Sadiq and Others V/s. Divisional Manager, United India Insurance Company Ltd.,), wherein, it is observed that, Quantum - injury - Leg and arm -
amputation of right leg due to injuries to lower end of right femur and injury over left upper arm - Doctor opined that, injured suffered disability of 24 per cent to upper limb and 85 per cent to lower limb -
Tribunal found that, injured age d24, vegetable vendor, suffered 30 per cent disablement to whole body which was increased to 65 per cent by High Court without assigning any reason - Apex Court assessed income at Rupees 6,500/- p.m., permanent functional disability at 85 per cent, added 50 per cent of income for future prospects, adopted multiplier of 18 and allowed Rupees 17,90,100/- for loss of future income plus Rupees 50,000/- for cost of artificial leg, Rupees 75,000/- for loss of amenities, Rupees 1,00,000/- for medical and incidental expenses and Rupees 25,000/- as litigation cost; total Rupees 21,65,000/-.
ii) 2014 ACJ 653 Supreme Court of India (Sanjay Kumar V/s. Ashok Kumar and Another), wherein, it is observed that, 11 M.V.C.NO.5350/2014 (SCCH-7) Quantum-injury-leg-amputation of right leg above knee-injured was hospitalized for 46 days and remained under treatment for 3 months-injured an embroiderer, earning Rupees 4,500 p.m. and as per entry 18, Part II, Schedule 1 of Workmen's Compensation Act, suffered 70 percent loss of earning capacity-Tribunal taking into consideration minimum wages for unskilled worker assessed income at Rupees 3,160 p.m., adopted multiplier of 16 and awarded Rupees 4,83,472-High Court adopted multiplier of 18 and enhanced the award to Rupees 6,35,808-Apex Court taking into consideration that, injured was a skilled worker, accepted his claim of income of Rupees 4,500 per month, allowed 50 percent increase for future prospects, took loss of earning capacity at 70 percent, adopted multiplier, of 18 and allowed Rupees 10,20,600 plus Rupees 13,500 for loss of income during treatment Rupees 75,000 for medical expenses, attendant and conveyance Rupees 75,000 for loss of marriage prospects, Rupees 1,5,000 for mental agony and pain and sufferings Rupees 1,00,000/- for loss of amenities and Rupees 25,000/- as cost of litigation-Award of Rupees 6,35,808 enhanced to Rupees 14,59,100/-.
iii) 2011 ACJ 2412 (Sarika V/s. Narain Singh), wherein, it is observed that, Quantum - Injury - Leg - Amputation of right leg above knee - injured remained hospitalized for 6 months and underwent 6 surgeries - Injured aged 13, class VII student, sustained 100 per cent permanent disablement in relation to her right lower limb - Tribunal awarded Rupees 50,000/- for permanent disability, Rupees 20,000/- for medical expenses, Rupees 10,000/- for conveyance charges, Rupees 10,000/- for special diet, Rupees 20,000/- for pain and suffering and Rupees 1,00,000/- towards 12 M.V.C.NO.5350/2014 (SCCH-7) loss of marital prospects - during pendency of appeal injured continued her education and completed masters in computer application but, she was not able to secure any job due to permanent disability -
appellate court assessed her earning capacity at Rupees 6,500/- p.m., adopted multiplier of 18 and assessed loss of income at Rupees 14,04,000/- and taking loss of earning capacity to be 50 per cent in relation to entire body awarded Rupees 7,02,000/- for loss of earning capacity, Rupees 20,000/- for medical expenses, Rupees 30,000/- for transportation, Rupees 10,000/- for special diet, Rupees 1,00,000/- for pain and suffering, Rupees 1,00,000/- for loss of marital prospects, Rupees 1,00,000/- for loss of amenities of life and Rupees 3,03,500/- for cost of artificial limb - award of Rupees 2,10,000/- enhanced to Rupees 13,65,500/-.
iv) 2014 ACJ 1412 (Dinesh Singh V/s. Bajaj Allianz General Insurance Company Ltd.,), wherein, it is observed that, Quantum - Injury - Leg and hand -
amputation of left leg above knee and fracture in left hand - injured was hospitalized for quite long in 3 different hospitals and operated upon twice - injured aged 24. B.E. degree holder in Metallurgy working as Quality Engineer in a limited Company, drawing Rupees 17,200/- p.m., suffered permanent disablement of 60 percent - injured is walking with assistance of artificial limb, had to resign his job as Engineer remained without job for 2 years and then took desk job as Grade B officer in a bank - tribunal in the absence of documentary evidence assessed income at Rupees 12,840/- p.m., and awarded Rupees 3,08,160/- as loss of income for 2 years and taking multiplier of 17 and permanent disablement of 60 per cent awarded Rupees 13 M.V.C.NO.5350/2014 (SCCH-7) 15,72,000/- as loss of earning capacity plus Rupees 70,000/- for pain and agony, Rupees 2,50,000/- for loss of amenities, Rupees 50,000/-for loss of marriage prospects, Rupees 3,10,000/- for medical expenses and Rupees 5,00,000/- for future medical expenses; total Rupees 30,60,160/- - High Court reduced the award to Rupees 6,32,000/- Apex Court not only restored the award of the Tribunal but, further allowed Rupees 50,000/- for pain and agony, Rupees 1,00,000/- for loss of amenities, Rupees 50,000/- for loss of marriage prospects and Rupees 50,000/- for future medical expenses - award of Rupees 6,32,000/-
enhanced to Rupees 33,10,160/-.
v) 2012 ACJ 28 (Govind Yadav V/s. New India Assurance Co. Ltd.,), wherein, it is observed that, Quantum - Injury - Leg - Amputation of left leg above knee - Injured aged 24, cleaner in minibus, drawing Rupees 4,000/- p.m., remained Hospitalized for over 3 months, suffered permanent disability of 70 per cent and lost his job - No evidence of income -
Tribunal assessed income at Rupees 15,000/- p.a., adopted multiplier of 17 and awarded Rupees 2,56,800/- - Appellate Court assessed income at Rupees 2,000/- p.m., and enhanced the award to Rupees 3,06,000/- - Apex Court taking into consideration minimum wages, assessed income at Rupees 3,000/- p.m., adopted multiplier of 18 and allowed Rupees 4,53,600/- for loss of earning capacity plus Rupees 2,00,000/- for future treatment and replacement of artificial limb, Rupees 1,50,000/- for pain, suffering and trauma , Rupees 1,50,000/- for loss of amenities and enjoyment of life - Award of Rupees 3,06,800/- enhanced to Rupees 9,53,600/-.
14 M.V.C.NO.5350/2014(SCCH-7)
vi) M.F.A.No.2369/2011 (MV) C/w M.F.A. Nos.2370/2011, 2371/2011, 2444/2011 and 2446/2011 (MV) (Sri.Ravindra Reddy and Others V/s. Sri. Narasimhamurthy and Another), wherein, it is observed that, Injured claimant is one Govindappa, aged about 42 years. As per Wound Certificate, he had sustained degloving injury of left leg and right leg, Type - III 'C' and compound fracture of both bones of right leg with crush injury to right leg, fracture of right femur. He underwent knee amputation of right lower limb, debridement and SSG done for left lower limb.
19. Considering the fact that, right leg of the claimant above knee was amputated, a sum of Rupees 1,50,000/- is awarded towards pain and suffering as against Rupees 50,000/- awarded by the Tribunal. As Rupees 25,000/- awarded by the Tribunal towards medical expenses is based on Medical Bills produced, there is no scope for enhancement. He was treated as inpatient for 51 days in a Private Hospital. Considering the duration of treatment as inpatient, a sum of Rupees 20,000/- is awarded towards incidental expenses such as conveyance, nourishment and attendant charges.
20. He claims to have been working as a Coolie under an Electrical Contractor, viz., Thimmarayareddy who also died in the same accident. Considering the same, his income is assessed at Rupees 5,000/- p.m. Nature of injuries suggest that, he must have been under rest and treatment for a period of four months. Therefore, a sum of Rupees 20,000/- is awarded towards loss of earning during laid up period.
15 M.V.C.NO.5350/2014(SCCH-7) 21 Considering the nature of injuries sustained, disability stated by the Doctor and an amount of unhappiness and discomfort he has to undergo in his future life, a sum of Rupees 1,50,000/- is awarded towards loss of amenities.
22. The claimant's income is assessed at Rupees 5,000/- p.m., Multiplier applicable to his age group is 14. Doctor has assessed the disability caused to whole body at 85%. The Tribunal, considering that, his right leg was amputated above knee and he was confined to wheel - chair and had also sustained injury to left leg, is justified in taking functional disability at 100% as against 85% disability stated by the Doctor to whole body. Thus, loss of future income would work out to Rupees 5,000/- x 12 x 14 = Rupees 8,40,000/- and it is awarded as against Rupees 5,04,000/- awarded by the Tribunal. A sum of Rupees 50,000/- is awarded towards future medical expenses and cost of wheel - chair. Thus he is entitled for compensation as follows:
i) Pan and suffering 1,50,000-00
ii) Medical expenses 25,000-00
iii) Incidental expenses 20,000-00
iv) Loss of amenities 1,50,000-00
v) Loss of future income 8,40,000-00
vi) Future medical expenses,
attendant charges including
cost of wheel chair 50,000-00
Total 12,35,000-00
16 M.V.C.NO.5350/2014
(SCCH-7)
Less: Compensation awarded
by the Tribunal 6,49,000-00
Addl. Compensation 5,86,000-00
Thus, he is entitled for additional
compensation of Rupees 5,86,000/- along with costs and interest at the rate of 6% p.a., from the date of petition till realization.
vii) 2014 ACJ 1441 (V. Mekala V/s. M. Malathi and Another), wherein, it is observed that, Quantum - Injury - Leg and Knee -
Fracture in both bones of both legs, knee injuries and mal-united knee bones, thickness of both legs is reduced and despite multiple surgeries, both her legs have become dysfunctional - Knee folding is restricted between 25 degree and 85 degree - Injured girl aged 16, brilliant student of class XI, holding first rank in her school, suffered 70 per cent permanent disablement
- Injured is unable to walk without crutches and suffering severe pain while walking, is not able to squat and sit cross - legged comfortably on floor - Tribunal awarded Rupees 6,46,000/- High Court taking notional income at Rupees 6,000/- p.m., allowed Rupees 18,22,000/- - Apex Court assessed notional income at Rupees 10,000/- p.m., added 50 per cent for future prospects, taking disablement at 70 per cent and multiplier of 18, allowed Rupees 22,68,000/- for loss of earning capacity plus Rupees 2,00,000/- for pain and suffering and mental agony, Rupees 2,00,000/- for loss of amenities and attendant charges, Rupees 3,00,000/- for loss of enjoyment of life and marriage prospects, Rupees 50,000/- for cost of 17 M.V.C.NO.5350/2014 (SCCH-7) crutches and Rupees 25,000/- for cost of litigation - Award of Rupees 18,22,000/- enhanced to Rupees 30,93,000/-.
12. In support of the submission, the Learned Counsel appearing for the Respondent No.1 Sri. B.R.Murthy has placed reliance upon the decisions reported in,
i) ILR 2009 KAR 385 KAR 385 (Smt. Nasreen Banu and Others V/s. The Divisional Manager and Another), wherein, it is observed that, (B) Motor Vehicles Act, 1988 - Accident
- Claim for compensation - Actionable negligence of a driver of the offending vehicle
- HELD, A claim petition for compensation based on actionable negligence, negligence of the driver of the offending vehicle need not be established beyond reasonable doubt like that, of a penal action case, i.e., criminal case. However, one cannot loose sigh of evidence Act and like a civil case, if it is purely based on facts, it has to be on the number of preponderance of probabilities. This preponderance of probability again is a relative word which depends upon the nature and quality of evidence let in by the parties. - On Facts, HELD, having regard to the fact that, the lorry and the Motor Cycle were proceeding near a bus stand where public including other vehicles were moving on the road, both the lorry driver and the Motorcyclist ought to have exercised due diligence and care at least for the safety of themselves especially a Motorcyclist who was trying to over take a heavy vehicle like that, of a lorry especially in the night hours because the Motorcyclist may not be able to visualize what are the vehicles that, would be coming in the opposite direction ahead of the lorry - But, for the clearance given by the lorry driver, the motor cyclist would not have 18 M.V.C.NO.5350/2014 (SCCH-7) ventured to overtake the truck. If only safe distance was maintained between the Motor Cycle and the truck, the motorcyclist and the pillion rider would not have met with untimely death. All these facts would go to show both the lorry driver and the motorcyclist were not careful enough to avoid the accident which they could have avoided if only they had adhered to minimum safety precautions. However, under the facts and circumstances, it can be held that, the driver of the lorry contributed negligence to an extent of 75% and the motorcyclist to an extent of 25% for the occurrence of the accident.
ii) ILR 2003 KAR 409 (P.Varalakshmi Reddy and Others V/s. The Karnataka State Road Transport Corporation), wherein, it is observed that, Motor Vehicles Act, 1988 - Central Act No.59 of 1988 - Section 173(1) - Appeal by claimants against the judgment and award dated 20th April, 1995 in M.V.C. No.268/1990 on the file of member, M.A.C.T., Mangalore, Dakshina Kannada partly allowing the claim petition for compensation.
The Tribunal on the basis of evidence on record held that, this was the case of contributory negligence. Therefore it deducted 50% in the compensation awarded on the ground that, the deceased was responsible to the extent of 50% by way of contributory negligence. The Appellants/claimants contended that, there is no direct evidence to justify negligence of the deceased and that the computation made by the Learned Judge was erroneous. According to them multiplier of 15 should have applied instead of multiplier of 12.
19 M.V.C.NO.5350/2014(SCCH-7) HELD: From the sketch, it is very clear to us that, the cyclist was also in the wrong to a considerable extent and consequent to, we confirm the view of the finding of the Tribunal that, the deceased was guilty to contributory negligence. Having regard to the manner in which the bus was being driven, we hold that, the greater degree of negligence is attributable to the bus driver and we accordingly apportion the negligence in the properties of 60:40 ... we have already held that, the multiplier would have to be 15 in which case the aggregate would work out to Rupees 5,45,290/- and 60%, this would work out to Rupees 3,28,374/-. The Tribunal has awarded a sum of Rupees 2,18,960/-
under the head and the corporation will accordingly have to deposit the enhanced compensation along with interest .... It is well settled that, the Tribunal is not bound by the decision recorded in a criminal case as this is an independent proceedings.
iii) 2005 ACJ 1323 (National Insurance Company Ltd., V/s Prembai Patel and Others), wherein, it is observed that, Motor vehicles Act, 1988, Section 147(2) - Motor insurance - Act policy -
Extent of liability of Insurance Company - Death of driver when truck overturned -
Death arose out of and in the course of employment - claimants preferred claim under Motor Vehicles Act - Vehicle was insured under 'Act liability only' policy - High Court held that, liability of Insurance Company is not limited to the extent provided under Workmen's Compensation Act and directed the Insurance Company to pay the awarded amount - Whether liability of Insurance Company is limited to the extent arising under Workmen's Compensation Act - Held: yes; owners to satisfy the remaining portion of the award.
20 M.V.C.NO.5350/2014(SCCH-7) (2002 ACJ 271 (SC) followed: 2000 ACJ 1359 (MP) modified).
But, the claim petition before the Motor Accidents Claims Tribunal is an action in tort and the injured or the legal representatives of the deceased have to establish by preponderance of evidence that, there was no negligence on the part of the injured or deceased and they were not responsible for the accident. The exception to this general rule is given in Section 140 of the Act where the legislature has specifically made provisions for payment of compensation on the principle of no fault liability.
iv) M.F.A.No.30284 of 2008 (MV) (Ramalingappa S/o. Basanna V/s. Shivarao S/o. Bheemanna and Others), wherein, it is observed that,
2. The case made out is that, when he was riding a Motor Cycle, a Lorry came from the opposite side and dashed against him. He sustained injuries. On the question of liability it was held that, the claimant did not possess a driving licence to drive the vehicle. Hence, his negligence was held at 25% and the negligence of the driver of the Lorry held at 75%. On hearing the learned counsel for the appellant and examining the records, I do not find any good ground to interfere with the finding of the Tribunal. Negligence attributed at 25% to the claimant is sustained. The finding recorded is in tune with the facts and evidence. No interference is called for.
v) M.A.NO.223 of 2007 (Ramzan Ansari and Another V/s. Kavita Singh and Others), wherein, it is observed that, 21 M.V.C.NO.5350/2014 (SCCH-7) The Tribunal after taking into consideration the facts regarding earning of the deceased assessed the compensation amount at Rupees 1,92,000/-. However, holding that, there is contributory negligence on the part of the deceased, 20% of the compensation amount was deducted and the award was passed for the Rupees 1,32,500/-
Mr. Arvind Kumar Lal, learned Counsel appearing for the appellant submitted that, the defence taken by the Insurance Company that, the deceased was not holding a licence to drive the Motor Cycle is not available to it. This defence can be taken only by the owner or insurer of the Motor Cycle.
In our view submission made by the counsel is wholly misconceived and devoid of any substance. Under the law a person is not entitled to drive a Motor Cycle without holding a valid driving licence. However, without obtaining any driving licence a person drives the Motor Cycle and met with an accident presumption would be that, he was not competent to drive the Motor Cycle.
13. 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
9,77,774/- with interest at
the rate of 8% p.a.
(excluding future medical
expenses of Rupees
50,000/-) from the date of
the petition till the date of
payment, from the
22 M.V.C.NO.5350/2014
(SCCH-7)
Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
14. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, on 19.09.2014 at about 4.00 p.m., he was riding a Motor Bike bearing Registration No.KA- 06-ER-3802 along with his friend, namely, Chennabasavaiah as a pillion rider, on NH-04 Bangalore-Tumkur Road, Opposite to Sannappanapalya, very carefully, cautiously and observing all the traffic rules and at that time, one Lorry bearing Registration No.KA-22-A-7930, driven by its driver at a very high speed in a rash and negligent manner so as to endangering to human life came from Bangalore side towards Tumkur and dashed against their Motor Bike. He has further stated that, due to impact, both the vehicles are badly damaged and as a result, he and pillion rider were fell down along with Motor Bike and sustained injury. He has further stated that, he sustained head injury, comminuted fracture of right both bone with degloving injury over knee to thigh and other injuries all over the body. He has further stated that, immediately, he was shifted to Tumkur General Hospital by 108 Ambulance, wherein, first-aid was given and then, he was shifted to NIMHANS Hospital for head injury treatment, whereat, he was treated and necessary examination was done and then, he was shifted to Sanjay Gandhi Hospital for further treatment, whereat, he was treated as an inpatient for two months 22 days. He has further stated that, X-ray was taken and above said fractures and injuries were confirmed. He has further stated that, the Doctor, who had treated him opined that, injuries caused permanent in nature and advised to undergo an operation and during the stay 23 M.V.C.NO.5350/2014 (SCCH-7) in the Hospital, he had operated for several times and initially, he had operated in the form of wound debridement and fixing external fixator and due to developed gangrene and loss of blood supply to his right leg, above knee was amputed in order to save his life. He has further stated that, this accident happened due to the sole rash and negligent driving of the Lorry bearing Registration No.KA-22-A-7930 by its driver and one Mr. Siddesh. T.C. has lodged a complaint before the Kyathasandra Police and the Police have registered a case as against the driver of the said Lorry and the said Police have recorded his statement and in turn, the Police have taken up investigation and after investigation, the said Police have filed a Charge Sheet as against the driver of the said Lorry.
15. No doubt, the P.W.1 in his cross-examination has stated that, the road on which the accident was taken place was a very busy road and it was two ways and the said road is a straight road and the accident was taken place in the middle of the road and before the accident, he saw the offending Lorry. Further, though the P.W.1 has stated in his cross-examination that, he had driving licence to ride the Motor Cycle and the Motor Cycle, on which he was proceeding at the time of accident is belongd to him, which is a new vehicle, the Petitioner has not produced his driving licence and the vehicular documents relating to the said Motor Cycle. Though he has further stated that, in the accidental spot, he has lost his driving licence and he has no hurdle to produce his driving licence extract, the Petitioner did not care to produce the same.
16. But, based on the said evidence of P.W.1, which is elicited from his mouth by the Respondents during the course of 24 M.V.C.NO.5350/2014 (SCCH-7) cross-examination, the above said entire evidence stated by the P.W.1 in the examination-in-chief, cannot be thrown away, as, to consider his oral version as well as his case, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Statement of Details relating to Nataraju, Ex.P.4 Spot Panchanama, Ex.P.5 MVI Report, Ex.P.6 Charge Sheet, Ex.P.7 Wound Certificate issued by District Hospital, Tumkur, Ex.P.8 Wound Certificate issued by Sanjay Gandhi, Ex.P.9 Discharge Summary issued by Nimhans, Ex.P.10 Discharge Summary issued by Sanjay Gandhi Hospital and Ex.P.13 Case Sheet, which clearly disclosed that, there is no negligence on the part of the Petitioner in riding the Motor Cycle bearing Registration No.KA-22-A-7930 in the commission of the said road traffic accident and if the driver of the offending Lorry could have taken a little care, he could have avoided the said road traffic accident and in the said road traffic accident, the Petitioner had sustained two grievous injuries and by admitting as an inpatient from 20.09.2014 to 12.12.2014, i.e., for 84 days at Sanjay Gandhi Hospital, he took treatment to the said accidental injuries and initially, on 19.09.2014 at 4.30 p.m., he had taken treatment to the said accidental injuries at Nimhans Hospital and thereafter, he was referred to the Orthopedician for further management and hence, he was admitted in the Sanjay Gandhi Hospital and on 20.11.2014 above knee amputation under SA was done to the Petitioner, which is clear from the following discussion. Further, the P.W.1 has clearly denied the suggestions put to him by the Respondents during the course of cross- examination that, due to his own negligence, the accident was taken place in the middle of the road and there was no negligence on the part of the driver of the offending Lorry and in the alleged accident, he has only sustained simple injuries and he has amputated due to other reason and not due to the accidental 25 M.V.C.NO.5350/2014 (SCCH-7) injuries. From this, it appears that, though the P.W.1 has been cross-examined by the Respondents, nothing has been elicited from his mouth to consider their defence. More so, though the Respondents No.1 and 2 have filed the Written Statements to contest the case of the Petitioner, they have not adduced any evidence on their behalf to consider their specific defence.
17. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the son of the pillion rider of the Motor Cycle, wherein, the Petitioner was riding, had lodged Ex.P.2 Complaint before the Kyathasandra Police as against the driver of the offending Lorry bearing Registration No.KA-22-A-7930 by alleging that, when his father as a pillion rider and the Petitioner as a rider were proceeding on the Pulsar Motor Cycle bearing Registration No.KA-06-Ex.R-3802 on 19.09.2014 at 4-00 p.m., from Bangalore to Tumkur, on N.H.4 Road, the driver of the offending Lorry bearing Registration No.KA-22-A-7930 came with very high speed, rash and negligent manner by its driver from Bangalore towards Tumkur and dashed the said Motor Cycle and due to which, the entire portion of the Motor Cycle was damaged and the Petitioner had sustained grievous injury on his right thigh and head and his father had sustained grievous injuries on his right knee, right hand, forearm and the public and the driver of the Ambulance belongs to Jas Toll Company had shifted them to Tumkur Government Hospital and the name of the driver of the offending Lorry is Kuthbudin Imam Hussain Bavi, Nichanaki Village, Belgaum District and the registration number of the offending Lorry is KA-22-A-7930 and the registration number of the Motor Cycle is KA-06-Ex.R.-3802, which were stationed on the accidental road and as such, he prayed to take necessary legal action as against the driver of the offending Lorry and based on 26 M.V.C.NO.5350/2014 (SCCH-7) Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Lorry for the offences punishable under Section 279 and 337 of IPC. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such, in lodging Ex.P.2 Complaint in respect of the said road traffic accident, which caused to the Petitioner.
18. The contents of Ex.P.3 Statement of Details relating to Nataraju, i.e., Petitioner, Ex.P.4 Spot Panchanama and Ex.P.5 MVI Report further clearly disclosed that, the entire negligence is on the part of the driver of the offending Lorry bearing Registration No.KA-22-A-7930 and there was no negligence on the part of the Petitioner in riding the Motor Cycle bearing Registration No.KA- 06-Ex.R.-3802 and if the driver of the offending Lorry had taken a little care at the time of accident in driving the offending Lorry, he could have avoided the said road traffic accident. The damages caused to both the offending Lorry and Motor Cycle are clearly shown in Ex.P.5 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.5 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicles.
19. The contents of Ex.P.8 Wound Certificate issued by the Sanjay Gandhi Hospital clearly disclosed that, with a alleged history of road traffic accident on 19.09.2014 at about 4-00 p.m., while the Petitioner was hit by a Lorry while traveling on a two wheeler at Elahalli, B.H. Road, Bangalore - Tumkur Road, the Petitioner was brought to the said Hospital on 20.09.2012 at 5.00 a.m., and on examination, it is found that, he had sustained injuries, i.e., crush, degloving injury of right knee, thigh and leg and fracture both bones right leg with right knee subluxation, 27 M.V.C.NO.5350/2014 (SCCH-7) which is grievous in nature. From this, it appears that, in the said road traffic accident, the Petitioner had sustained two grievous injuries.
20. The contents of Ex.P.9 Discharge Summary issued by the Nimhans Hospital clearly disclosed that, immediately after the accident, the Petitioner was shifted to Nimhans Hospital with alleged history of road traffic accident on 19.09.2014 at 4.30 p.m., and on examination, it is found that, right lower limb Thomas splunt, scalp CLW 5 cm and right forearm and wrist area bandaged and he was referred Orthopedician for further management. From this, it appears that, immediately after the accident, the Petitioner was taken to Nimhans Hospital, wherein, initial treatment was given to the accidental injuries and thereafter, he was referred to Orthopedician for further management.
21. The contents of Ex.P.10 Discharge Summary and Ex.P.13 Case Sheet further clearly disclosed that, by admitting as an inpatient from 20.09.2014 to 12.12.2014, i.e., for 84 days, the Petitioner took treatment to the said accidental injuries at Sanjay Gandhi Hospital and on 20.11.2014 above knee amputation was done to the Petitioner under SA.
22. The P.W.2, who is an initial treated Doctor has also clearly stated in his examination-in-chief that, the Petitioner brought to their Hospital with history of road traffic accident on 19.09.2014 at around 4-30 p.m., at Hirehalli on Bangalore Tumkur Highway and he was traveling on the two wheeler and was hit by a Lorry and sustained injuries, i.e., crushed, degloving 28 M.V.C.NO.5350/2014 (SCCH-7) injury of right knee, thigh and leg and fracture both bones right leg with right knee subluxation.
23. On perusal of the above said medical evidence, it is made crystal clear that, due to the said accidental injuries, the above knee amputation right leg was done to the Petitioner, which is due to the accidental injuries on the part of the driver of the offending Lorry.
24. The contents of Ex.P.6 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to rash and negligent manner of driving of the offending Lorry bearing Registration No.KA-22-A-7930 by its driver itself, the said road traffic accident was taken place on 19.09.2014 at 4- 00 p.m., on Tumkur - Bangalore N.H.4 Road, which dashed to the Motor Cycle bearing Registration No.KA-06-ER-3802, which was riding by the Petitioner and due to the said impact, the Petitioner had sustained grievous injury on his right thigh and the pillion rider had also sustained grievous injury on his both legs, right knee, right forearm and as such, after thorough investigation, the Investigating Officer has filed a Charge Sheet as against the driver of the offending Lorry for the offences punishable under Section 279, 337 and 338 of IPC. It is also clear from the contents of Ex.P.6 Charge Sheet that, there is no allegation leveled by the Investigation Officer as against the Petitioner in riding the Motor Cycle bearing Registration No.KA-06-ER-3802 about his negligence in the commission of the said road traffic accident.
25. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the driver of the offending Lorry bearing Registration 29 M.V.C.NO.5350/2014 (SCCH-7) No.KA-22-A-7930 and there is no negligence on the part of the Petitioner in the commission of the said road traffic accident, wherein, the Petitioner had sustained severe grievous injuries on his right leg and due to which, above knee amputation was done to the Petitioner. Accordingly, I answered Issue No.1 in the Affirmative.
26. ISSUE NO.2 :- The Petitioner has not produced any authenticated documents to consider his actual age at the time of accident. Ex.P.6 Charge Sheet and Ex.P.13 Case Sheet disclosed that, at the time of accident, the Petitioner was 38 years at the time of accident. Ex.P.8 Wound Certificate and Ex.P.9 Discharge Summary disclosed that, at the time of accident, the Petitioner was 45 years old. Ex.P.10 Discharge Summary disclosed that, at the time of accident, the Petitioner was 37 years old. From this, it appears that, there is discrepancy in mentioning the age of the Petitioner at the time of accident in the Police and medical documents. However, Ex.P.8 Wound Certificate and Ex.P.9 Discharge Summary are the primary documents, wherein, the age of the Petitioner was mentioned as 45 years and as such, based on the same, the actual age of the Petitioner is considered as 45 years old at the time of accident.
27. The P.W.1 has stated that, prior to that accident, he was very hale and healthy and doing Coolie work and earning a sum of Rupees 800/- per day. To consider the avocation and income, the Petitioner has also not produced any acceptable material evidence. However, in the absence of the material evidence for consideration of the avocation and income of the Petitioner at the time of accident, by considering his age as 45 years, which disclosed his family status with wife and children, 30 M.V.C.NO.5350/2014 (SCCH-7) this Tribunal feels that, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 8,000/- p.m. Hence, the notional income of the Petitioner is considered as Rupees 8,000/- p.m., at the time of accident.
28. The P.W.1 has stated that, he was discharged with an advise to come for follow-up treatment and he visited the Doctor once in 15 days for three times and once in a month for five times, even today, he is taking treatment as and when necessary. The P.W.2 has stated that, the Petitioner has taken regular follow-up treatment at Sanjay Gandhi Hospital.
29. Based on the contents of Ex.P.8 Wound Certificate, Ex.P.9 Discharge Summary, Ex.P.10 Discharge Summary and Ex.P.13 Case Sheet and oral version of P.W.1 and P.W.2, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained crush, degloving injury of right knee, thigh and leg and fracture both bones right leg with right knee subluxation and by admitting as an inpatient from 20.09.2014 to 12.12.2014, i.e., for 84 days at Sanjay Gandhi Hospital, he took treatment to the said accidental injuries and on 20.11.2014 above knee amputation of right leg to the Petitioner was done under SA. During the course of treatment, the Petitioner was also operated in the form of wound debridement and external fixator was done and gangrene was developed and blood was not supplied to the right leg of the Petitioner above knee and as such, right leg above knee amputation was done on 20.11.2014, which is clear from the contents of Ex.P.10 Discharge Summary and Ex.P.13 Case Sheet. Since, the right leg above knee of the Petitioner was amputed and as such, even he was discharged on 12.12.2014 from the Hospital, he was very much 31 M.V.C.NO.5350/2014 (SCCH-7) required the regular follow-up treatment as per the advise of the treated Doctors. Therefore, the evidence of P.W.1 and P.W.2 in respect of the regular follow-up treatment taken by the Petitioner to the said accidental injuries even after discharge from the Hospital can very well be believed and accept.
30. The P.W.1 has stated that, due to this accidental injuries, he could not attend his work so far and he became permanent disabled and his social life and marital life has been destroyed and it is very difficult to lead a day to day life without sufficient income and now his earnings capacity is totally reduced and hence, himself and his family members are put to great hardship and mental agony. He has further stated that, prior to that accident, he was very hale and healthy, due to this accidental injuries sustained in RTA, he cannot walk and stand without support of walker, he cannot use Indian type of toilet, he cannot run, he cannot climb or down stairs, he cannot sit crossed leg, he cannot ride any vehicle, he cannot lift weight, he cannot sleep in one angle, he cannot sit on the floor, he cannot do any manual work and now he is fully depending upon other in all day to day activities. He has further stated that, due to amputation of his right leg above knee, his bright future, good ambitions and achievements are become destroyed and his life is put in dark and miserable.
31. The P.W.2 has stated that, on 15.06.2015, the Petitioner was brought to him for follow-up and assessment of disability and he complained of pain and stiffness around his right thigh and pain in the amputated stump and phantom limb sensation in right lower limb. He has further stated that, he is unable to walk normally, climb stairs, squat, sit cross legged and 32 M.V.C.NO.5350/2014 (SCCH-7) has difficulty in doing his routine activities due to the above disabilities. He has further stated that, on recent examination on 15.06.2015, he found that, antalgic gait, arc of movement of right hip flexion/extension restricted 30 degree, abduction/adduction, restriction by 20 degree and rotation restricted by 10 degree, A/K amputated stump of about 20 cm and X-ray done on 15.06.2015 shows the amputated A/K in right lower limb. He has further stated that, evaluation of permanent physical impairment in the right lower limb revealed. He has further stated that, above knee amputation up to lower 1/3rd thigh and additional points - stiffness, neuroma and permanent physical impairment of 85%. He has further stated that, the Petitioner has pain and restricted ROM in the right hip along with A/K amputated stump of 20 cm in right lower limb causing difficulty in performing routine activities and he has 43% whole body disability due to permanent physical impairment in right lower limb. The P.W.2 has produced Ex.P.14 Recent X-ray Films.
32. Based on the contents of the above said medical documents as well as the oral version of P.W.1 and P.W.2, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained crush, degloving injury of right knee, thigh and leg and fracture both bones right leg with right knee subluxation and by admitting as an inpatient from 20.09.2014 to 12.12.2014, i.e., for 84 days, he took treatment to the said accidental injuries and during the course of treatment, right leg above knee amputation was done to the Petitioner under SA on 20.11.2014. From this, it is made crystal clear that, in the said road traffic accident and due to the said accidental injuries, the Petitioner has lost his right leg above knee. As stated by the Petitioner, he was a Coolie at the time of 33 M.V.C.NO.5350/2014 (SCCH-7) accident. Further, at the time of accident, the Petitioner was 45 years old, who is having wife and children. The entire burden is on the Petitioner to look after his family by maintaining them with his earnings. Due to the accidental injuries, the Petitioner has lost his right leg above knee. Therefore, there is no exaggeration of permanent physical impairment of 85% and 43% to the whole body disability as stated by the P.W.2. Therefore, the whole body disability of 43% suffering by the Petitioner due to the said accidental injuries, which is relating to the permanent physical impairment of right lower limb can very well be believed and accept. Hence the Petitioner is entitled for the compensation under the following heads.
33. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 45 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 14.
34. As the Petitioner is suffering from permanent physical and functional disability of 43% 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 43% disability for monthly income of Rupees 8,000/- by applying multiplier 14 comes to Rupees 5,77,920/-, i.e., (Rs.8,000/- x 12 x 14 x 43%).
35. As per Ex.P.8 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained two grievous injuries. The Petitioner was in the Hospital as an inpatient from 20.09.2014 to 12.12.2014, i.e., for 84 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony 34 M.V.C.NO.5350/2014 (SCCH-7) during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 1,00,000/- towards pain and suffering.
36. As it is already observed that, the age of the Petitioner was 45 years. He has to lead remaining his entire life with 43% 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 1,00,000/- towards loss of amenities of life to the Petitioner.
37. The Petitioner had sustained two grievous injuries and he was in the Hospital as an inpatient for 84 days and he could not do any work at least for 6 months and thereby, he deprived the income. Therefore, at the rate of Rupees 8,000/- per month, a sum of Rupees 48,000/- is awarded towards loss of income during the laid up period.
38. The P.W.1 has stated that, he visited the Doctor once in 15 days for three times and once in a month for five times, even today he is taking treatment as and when necessary by using a taxi and Auto and paying sum of Rupees 1,200/- and Rupees 200/- per trip respectively and he has spent a sum of Rupees 1,00,000/- for his treatment, conveyance, nourishment etc., and still he is under treatment. In this regard, the Petitioner has produced Ex.P.11 Medical Bills 57 in numbers, which is amounting of Rupees 64,648/- and Ex.P.12 Medical Prescriptions 24 in numbers. The Petitioner has taken treatment at Sanjay Gandhi Hospital, wherein, he was taken treatment as an inpatient from 20.09.2014 to 12.12.2014, i.e., for 84 days. Considering the nature of the injuries and line of treatment given to the Petitioner 35 M.V.C.NO.5350/2014 (SCCH-7) and length of treatment, the possibility of spending the said amount for the medicines can not be doubted. Therefore, the Petitioner is entitled for the amount of Rupees 64,648/-, which covered under Ex.P.11 Medical Bills. It is pertinent to note here that, the said Ex.P.11 Medical Bills consisting advance receipts, Medical Bills, X-ray fees etc. The P.W.2 in his cross-examination has admitted that, the medical expenses are reimbursed to their Hospital from Chief Minister Relief Fund, which is of Rupees 27,700/-. Ex.P.13 Case Sheet consisting Final Billing Sheet, which disclosed that, a sum of Rupees 27,794/- is paid by Chief Minister Relief Fund. Hence, the said amount of Rupees 27,794/- has to be deducted in the said amount of Rupees 64,648/-, which covered under Ex.P.1 Medical Bills. After deduction, the balance amount comes to Rupees 36,854/. Therefore, it is necessary to award the said actual medical expenses of Rupees 36,854/- to the Petitioner.
39. The P.W.1 has stated that, the Doctor has advised him to use artificial limb and he assessed cost of limb is around sum of Rupees 70,000/- to Rupees 75,000/- and it should be changed once in two years on depending upon the variation of size of limb. The P.W.2 has stated that, he has recommended A/K Total contact suction prosthesis for the Petitioner as it would improve his quality of life and the estimated cost of the same would be approximately Rupees 75,000/-. It is clearly mentioned in Ex.P.10 Discharge Summary about above knee amputation under SA on 20.11.2014. Neither the Petitioner nor P.W.2 produced the estimated cost for prosthesis. However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 50,000/- to the Petitioner.
36 M.V.C.NO.5350/2014(SCCH-7)
40. As the Petitioner was taken treatment as an inpatient for 84 days, it is necessary to award a sum of Rupees 20,000/- towards conveyance charges, Rupees 20,000/- towards attendant charges and Rupees 25,000/- towards food, nourishment and diet charges etc.,
41. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. arising out of 43% Rs. 5,77,920-00 Disability
2. Pain and sufferings Rs. 1,00,000-00
3. Loss of amenities of life Rs. 1,00,000-00 Loss of income during laid
4. Rs. 48,000-00 up period
5. Actual medical expenses Rs. 36,854-00
6. Future medical expenses Rs. 50,000-00
7. Conveyance Rs. 20,000-00
8. Attendant Charges Rs. 20,000-00 Food, Nourishment &
9. Rs. 25,000-00 Diet charges TOTAL Rs. 9,77,774-00
42. In all, the Petitioner is entitled for total compensation of Rupees 9,77,774/- along with interest at the rate of 8% per annum on the above said sum (excluding future medical expenses of Rupees 50,000/-) from the date of petition till payment.
43. While answering Issue No.1, this Tribunal has already come to the conclusion that, due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.KA-22-A-7930 by its driver itself, the said road traffic accident was taken place, wherein, the Petitioner had 37 M.V.C.NO.5350/2014 (SCCH-7) sustained grievous injuries. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.1 was an insurer, the Respondent No.2 was a present R.C. Owner and the Respondent No.3 was a previous owner of the offending Lorry bearing Registration No.KA-22-A-7930. The Respondent No.1 in its Written Statement has clearly stated that, he is the insurer of Lorry bearing Registration No.KA-22-A-7930 and the liability of him is subject to the terms and conditions of the policy of the insurance, the provisions of the Motor Vehicles Act and valid F.C. and R.C. and valid and effective driving licence held by the driver of the Lorry as on the date of the alleged accident. The Respondent No.2 in his Written Statement has clearly stated that, he is the owner of the said vehicle and the Respondent No.1 is the insurer of the said vehicle in Policy No.10003/31/14/441982, valid from 18.10.2013 to 17.10.2014. The Respondent No.1 has produced Ex.R.1 Insurance Policy, which is marked with consent, which clearly disclosed that, the Insurance Policy relating to the offending Lorry bearing Registration No.KA-22-A-7930 was valid. On perusal of the contents of Ex.R.1 Insurance Policy, it appears that, the name of the Respondent No.3 is not shown in Ex.R.1 Insurance Policy. Further, as per the cause title of the petition, the Respondent No.3 was a previous owner of the offending Lorry bearing Registration No.KA-22-A-7930. Therefore, the Respondent No.3 no way concerned to the accident in question in respect of the offending Lorry bearing Registration No.KA-22-A-7930. From this material evidence, the Respondent No.1 and the Respondent No.2 are only be considered as insurer and R.C. Owner of the offending Lorry bearing Registration No.KA-22-A-7930 at the time of accident. From this, it is made crystal clear that, at the time of accident, the Respondent No.1 was an insurer and the Respondent No.2 was a R.C. Owner of the offending Lorry bearing 38 M.V.C.NO.5350/2014 (SCCH-7) Registration No.KA-22-A-7930 and its Insurance Policy was valid, which covers the date of accident. There is no allegation leveled by the Investigation Officer as against the driver of the offending Lorry in Ex.P.6 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive such class of offending Lorry. The violation of the terms and conditions of Ex.R.1 Insurance Policy by the Respondent No.2 is not proved by the Respondent No.1. Under such circumstances, the Respondent No.1 being an insurer and the Respondent No.2 being the R.C. Owner of the offending Lorry bearing Registration No.KA-22-A- 7930, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since the Respondent No.1 is an insurer, it shall indemnify the Respondent No.2. Hence, the petition filed by the Petitioner as against the Respondents No.1 and 2 is liable to be allowed and it is liable to be dismissed as against the Respondent No.3. In view of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioner are aptly applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.1 are not applicable to the present facts and circumstances of the case on hand. 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 39 M.V.C.NO.5350/2014 (SCCH-7) Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondents No.1 and 2.
The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby dismissed without costs as against the Respondent No.3.
The Petitioner is entitled for compensation of Rupees 9,77,774/- with interest at the rate of 8% p.a.
(excluding future medical expenses of Rupees 50,000/-) from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, 50% shall be released in the name of Petitioner through account payee cheque, on proper identification.
Remaining 50% shall be kept in FD in the name of the Petitioner, in any 40 M.V.C.NO.5350/2014 (SCCH-7) 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 him, corrected and then, pronounced by me in the open Court on this the 18th day, of April 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Nataraju
P.W.2 : Dr. Avinash Parthasarathy
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True Copy of Statement of Details
Relating To Nataraju
Ex.P.4 : True copy of Spot Panchanama
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Charge Sheet
Ex.P.7 : True copy of Wound Certificate issued by
District Hospital, Tumkur
Ex.P.8 : True copy of Wound Certificate issued by
Sanjay Gandhi Hospital
Ex.P.9 : Discharge Summary issued by Nimhans
Ex.P.10 : Discharge Summary issued by Sanjay
41 M.V.C.NO.5350/2014
(SCCH-7)
Gandhi Hospital
Ex.P.11 : Medical Bills (57 in nos.)
Ex.P.12 : Medical Prescriptions (24 in nos.)
Ex.P.13 : Case Sheet
Ex.P.14 : Recent X-ray Film
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Insurance Policy (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.