Bangalore District Court
Srihari .K vs ) Venkatachalapathy Rao on 29 September, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 29th DAY OF SEPTEMBER, 2015
PRESENT: Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.1512/2014
Petitioner/s Srihari .K,
S/o Krishnamurthy A.G.,
Aged about 40 years,
R/at No.72, 9th Cross,
1st Main Road, Maruthi Nagar,
Yelhanka, Bengaluru-64.
(By Pleader - Sri.Sudhakar, B.V.)
V/s
Respondent/s 1) Venkatachalapathy Rao, K.,
S/o Venkatakrishna Rao, K.,
Sonagannahalli Village,
Sadali Post, Sidlaghatta Taluk,
Chikkaballapura District.
(RC owner of the car bearing
Reg.No.KA-04 N-1179)
(By Pleader - Exparte.)
2) The United India Insurance
Co. Ltd.,
Motor IIIrd party Claim Hub,
5th and 6th Floor,
Krushi Bhavan, Hudson Circle,
Bengaluru.
(Insurer of the Car bearing
Reg.No.KA-04 N-1179)
(SCCH-15) 2 MVC.1512/2014
Policy No.0715023113P100599986
valid from 30.04.2013 to 29.04.2014)
(By Pleader - Sri.D.M.Joshi.)
JUDGMENT
Petitioner has filed the present petition under Section 166 of MV Act seeking grant of compensation on account of injuries she has sustained in RTA.
2. Initially this petition was assigned to the Hon'ble SCCH-10 and subsequently as per the notification No.ADMI/419/2014 dated 06.05.2014, it is reassigned to this Tribunal for disposal in accordance with law.
3. The brief case of petitioner is that on 13.02.2014 at about 10:30 a.m., he was proceeding being the rider of the motor cycle bearing registration No.KA-02 HM-7816, near Green Park Hotel, NH-7, Bagepalli, Chikkaballapur Road. At that time the car bearing registration No.KA-04 N-1179 came from Bagepalli with high speed in a rash and negligent manner and dashed against his motor cycle.
b) Because of which he fell down and suffered severe injuries all over the body. Accident took place solely due to the rash and negligent driving of the car (SCCH-15) 3 MVC.1512/2014 driver. Therefore, 1st respondent being the RC owner and 2nd respondent being the insurer of the car are jointly and severally liable to pay the compensation. Hence, prayed to allow the petition as sought for.
4. In response to due service of notices, 1st respondent remained exparte. 2nd respondent has put its appearance through its counsel and filed its statement of objections to the main petition denying the petition averments. However, it has admitted the policy and its force on the date of accident but has contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents. It has specifically contended that the car driver did not possess valid and effective driving licence and the car was also not having valid permit, FC and RC etc. Therefore, there is breach of policy conditions.
b) It has also contended that the motor cycle rider did not possess valid and effective driving licence and the present petition is bad for non-joinder of necessary parties, since the RC owner and insurer of motor cycle are not made as parties to the present proceedings. It has (SCCH-15) 4 MVC.1512/2014 also contended that it is clear from the police records that the accident took place because of the negligent riding of the motor cycle rider who was riding it without observing traffic rules and regulations. Accordingly, it is not liable to pay the compensation. Hence, prayed to dismiss the petition against it with costs.
5. On the above said pleadings of the parties, this Tribunal has framed the following issues.
1. Whether the petitioner proves that he has sustained injury due to RTA alleged to have been occurred on 13.02.2014 at about 10:30 a.m., near Green Park Hotel, NH-7, Bagepalli Taluk, Chickballapura due to the rash and negligent driving of the Maruthi 800 car bearing No.KA-04 N-
1179?
2. Whether the petitioner is entitled for compensation? If so, what amount & from whom?
3. What order or award?
6. To prove the above said issues and to substantiate their respective contentions, petitioner himself has entered into witness box as PW-1. Got examined the doctor who has assessed the disability as PW-2; the investigating officers of the criminal case (SCCH-15) 5 MVC.1512/2014 registered with regard to the present accident as PWs-3 and 4 and the accused rider as PW-5 and the Medical Record Technician of Shiridi Sai Hospital, Bengaluru to cause production of case record as PW-6. Totally got exhibited 31 documents and closed his side.
b) Per contra, 2nd respondent got examined its Administrative Officer as RW-1. Got exhibited 4 documents and closed its side. Heard both the sides on merits of the case and perused the record.
7. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1: Affirmative.
2. Issue No.2: Petitioner is entitled for compensation amount of Rs.6,95,000/- together with interest at 9% p.a. on Rs.6,65,000/- (excluding the future medical expenses) from the date of petition till the realization of the compensation amount in its entirety from 2nd respondent.
3. Issue No.3: As per final order for the following reasons.
REASONS
8. ISSUE No.1:- 1st respondent remained exparte. Even, 2nd respondent has denied the entire case of the (SCCH-15) 6 MVC.1512/2014 petitioner, it has also contended that without prejudice to its earlier contention the police papers reveal that the accident took place because of the negligent riding of the motor cycle rider. In the course of evidence it has took up the contention that the FIR is registered against the accused and the charge sheet is filed against the some other person and thereby there is false implication of driver.
9. So, if the entire pleadings of the parties and the evidence let in by both the parties are taken into consideration, absolutely there is no dispute with regard to the alleged accident; the date, time and place of the accident; the vehicles involved in the accident and the fact that petitioner was the rider of motor cycle at the time of accident. Hence, the only point now that remained for the consideration of this Tribunal for the proper adjudication of this issue are the rash and negligent aspect as well as the fact that who was the driver of the insured car at the time of accident.
10. To establish his case as observed above, petitioner himself has entered into witness box as PW-1. (SCCH-15) 7 MVC.1512/2014 He has also filed his affidavit evidence wherein he has reiterated the above observed petition averments. He has specifically deposed that accident took place solely due to the rash and negligent driving of car driver. In his cross- examination his chief evidence is denied by way of suggestions which are in turn denied by him.
11. However, it is elicited that the complaint is lodged by one C.R.Prakash who was not present with him at the time of accident. Therefore, a question is posed to him that who gave information to the complainant about the details of the accident, for which he has deposed that when he met with the accident, the public at spot enquired him and he told that he was going to National College at Bagepalli, then the public at the spot called complainant to the spot over phone.
12. It is also in his cross-examination that he left the house at 8.35 a.m. The match was fixed at 11:00 a.m. Accident took place at 10.30 a.m. The distance between accident spot and the tournament place was around 1.5 k.m. He was alone on the two wheeler. The owner of the said two wheeler is his friend (SCCH-15) 8 MVC.1512/2014 H.M.Manjunath of Bengaluru. There was insurance coverage for said two wheeler but he does not know the name of insurance company.
13. He has denied the suggestion that the road at accident spot is highway. At this stage he voluntarily deposed that it is a service road, beside the highway. The width of the said road was around 30 feet. The said road was one way. At this stage he voluntarily deposed that but the opposite car came on the wrong side but it is not written either in his petition or in his affidavit evidence that the opposite car came from wrong side.
14. It is also in his cross-examination that he was proceeding on the left side of the road and he has denied the suggestion that nowhere either in his petition or in his affidavit evidence or in police papers, it is stated that he was proceeding on the service road.
15. He has also deposed that before the accident, he saw the opposite car at a distance of 8 to 10 meters. He was at the speed of 40 kmph. The opposite car was coming on the right side to his two wheeler. (SCCH-15) 9 MVC.1512/2014
16. It is also in his cross-examination that his two wheeler suffered damages to the front right handle, right side mudguard and engine. He does not know to which parts, the car has suffered damages. The accident is not head on collusion. At this stage he voluntarily deposed that the car came and dashed against right portion of his two wheeler.
17. It is also in his cross-examination that the accident took place on the left edge of thar road i.e. service road leads from Bengaluru to Bagepalli town. He has denied the suggestion that he has falsely stated that the accident took place on the left edge of the thar/service road.
18. At this stage it is important to note that as observed above, even 2nd respondent has denied the entire case of petitioner, it has also took up the defence that the police papers reveal that the accident took place because of the negligent riding of the motor cycle. So, it has not at all disputed the involvement of the car. Of course it has raised objections with regard to the person who was on the wheel of the car at the time of accident. (SCCH-15) 10 MVC.1512/2014
19. It is also in the cross-examination of petitioner that he heard that the name of car driver was Venkatachalapathi Rao. Police have enquired him about the accident. To the question that he has not produced spot sketch, he has deposed that the police only given spot mahazar.
20. He has denied the suggestion that the accident took place on his own negligence and there is no fault on the part of car driver and the car driver was some other person and since the said some other person had no valid driving license, the police have got falsely implicated Venkatachalapathi Rao who had driving license.
21. At this stage it is important to note that the Venkatachalapathi Rao is the 1st respondent herein who is the RC owner of the car. The FIR is registered against the car driver who is unknown and the car number is stated as KA-04 N-1179 Maruthi-800 and in the charge sheet the name of the accused is stated as Swasthik G.N. s/o S.Nagaraja, 22 years, Ellodu Village, Gudibande Taluk, Chikkaballapura District. Therefore, the accused (SCCH-15) 11 MVC.1512/2014 driver is not Venkatachapathi Rao as suggested to the petitioner on behalf of 2nd respondent.
22. However, as observed above, since the 2nd respondent has took up the contention of false implication of driver because of no driving licence, petitioner got examined the PSI, Bagepalli Police Station who had filed the charge sheet against the car driver as PW-3 who has produced true copies of PSR, notice under Section 133 of MV Act and reply to the said notice respectively at Ex.P-18 to 20.
23. He has also deposed that initial investigation was done by their ASI Altaf Pasha who is even now working in their police station. As per Ex.P-20, it was one Sathwik who was driving the car. Ex.P-18 also pertains to the accused by name Sathwik. At the time of investigation, RC owner has produced the xerox copy of driving licence pertains to Sathwik s/o Nagaraj. Due to oversight, in the charge sheet the accused driver name is mentioned as Swasthik instead of Sathwik.
24. He has also deposed that the criminal case is still pending for trial, wherein accused by name Sathwik (SCCH-15) 12 MVC.1512/2014 is appearing. As per reply of the RC owner, it was one Sathwik who was driver of the car at the time of accident and he has valid driving licence. But due to oversight his name was stated as Swasthik in the charge sheet. However, the accused driver is facing the criminal trial. So, PW-3 has deposed supporting the case of petitioner.
25. In his cross-examination for 2nd respondent, PW-3 has deposed that he has collected the wound certificate, gone through the records and filed the charge sheet. He has admitted the suggestion that the notice at Ex.P-19 is issued by the previous Investigating Officer.
26. It is also in his cross-examination that further statement of CW-1 and statements of CWs-2 to 4 by name Srihari, K., Sri. Mujayid Pasha and Sri.Ajmal Pasha were recorded by the previous Investigating Officer. He has denied the suggestion that in the further statement of CW-1 as well as in the statements of CWs-2 to 4, it is stated that name of accused driver is "Swasthik, G.N.".
27. He has also admitted the suggestion that prior to filing the charge sheet, he has gone through the further statement of CW-1 as well as statements of CWs- (SCCH-15) 13 MVC.1512/2014 2 to 4. He has denied the suggestion that basing on the entire investigation, the accused driver name is correctly stated as Swasthik, G.N. and basing on those records only, he has correctly filed the charge sheet against the accused driver by mentioning his name as "Swathik, G.N." and now despite of that in order to help the petitioner, he has given false evidence that due to oversight the accused driver's name is stated so.
28. It is also in the cross-examination of PW-3 for 2nd respondent that there is no mention in the charge sheet with regard to notice given under Section 133 of MV Act. He has admitted the suggestion that as per records, since the name of the accused driver name is shown as Swasthik, G.N., he has mentioned the same name in the charge sheet.
29. It is also there in his cross-examination that he has not enquired S.Nagaraj i.e. the father of the accused about the number of children he has. However, he has denied the suggestion that Ex.P-18 and 20 are created now and that is why, there is no mention of those records anywhere in the charge sheet.
(SCCH-15) 14 MVC.1512/2014
30. He has also deposed that he has not yet filed requisition seeking change of the name of accused in the charge sheet. He has denied the suggestion that he has rightly filed the charge sheet against Swasthik, G.N., therefore he has not taken any steps for alleged correction of name of the accused.
31. PW-4 the investigating officer who done the initial material investigation of the case on hand has produced true copies of notice under Section 133 of MV Act, reply thereto, driving licence of the accused driver by name Sri.Satwik, Bail bond executed driver and case dairy dated 14.02.2014 respectively at Ex.P-21 to 25.
32. PW-4 has also deposed that he has done material investigation of the case and on going through the file, the then PSI i.e. CW-10 who is PW-3 herein has filed the charge sheet. It is also in his evidence that he has issued notice u/s 133 of MV Act to the RC owner of the car by name Sri.Venkatachalapathi Rao of which the true copy is Ex.P-21.
33. It is also in his evidence that in response to the notice, the RC owner has issued reply at Ex.P-22. As per (SCCH-15) 15 MVC.1512/2014 Ex.P-22, the accused driver was Satwik. The accused driver Satwik had executed the bail bond at Ex.P-24. It bears his/accused driver's signature at Ex.P-24(a).
34. He has also deposed that during the investigation, he has recorded the statements of witnesses as well. Due to oversight, in the statements of the witnesses which are got prepared in the computer, the accused driver's name is typed as Swastik instead of Satwik. At the time of receiving reply at Ex.P-22, the RC owner had handed over the copy of driving license of Satwik at Ex.P-23.
35. He has specifically deposed that the actual driver on wheel at the time of accident was Satwik. The father's name and address of accused driver shown in the driving license at Ex.P-23 and the father name and address of accused driver shown in the charge sheet is one and the same.
36. It is in his cross-examination for 2nd respondent that in the complaint, the two wheeler registration number is inserted later. At this stage he voluntarily (SCCH-15) 16 MVC.1512/2014 deposed that the number was left out, that is why he himself has directed to insert the registration number.
37. It is also in his cross-examination that accident took place on 13.02.2014 and the complaint was registered on the very day. On the very day, he has conducted the spot mahazar. He did not prepare the spot sketch. At this stage he voluntarily deposed that since the offences involved are only Sections 279 and 337, he does not prepare the spot sketch.
38. It is also in his evidence that as per records, two wheeler was proceeding from Chikkaballapur to Bagepalli. The car came from opposite direction. As per the spot mahazar, the car suffered damages to front glass and bumper and two wheeler suffered damages to front portion. He has admitted the suggestion that the present accident is head on collusion. He has also admitted the suggestion that as per MV report also, two wheeler suffered damages to the front portion.
39. He has deposed that the accused was arrested on 14.02.2014. He has recorded the further statement of CW-1 on 13.02.2014; the statement of injured CW-2, eye (SCCH-15) 17 MVC.1512/2014 witnesses CWs-3 and 4 on 13.03.2014. He has admitted the suggestion that in the further statement of CW-1, it is mentioned that the injured CW-2 was proceeding along with CWs-3 and 4.
40. Basing on that it is question is posed to PW-4 that whether he has taken any further statement about his explanation that in the witnesses' statement the accused name is wrongly mentioned due to typographical error, for which he has answered that he came to know about that only after he received the summons from this tribunal.
41. He has also admitted the suggestion that after recording further statement of CW-1 on 13.02.2014, one month later on 13.03.2014, the statements of CWs-2 to 4 is recorded. He has also admitted the suggestion that in all the statements of CW-2 to 4 recorded after a month, the accused driver name is mentioned as G.N.Swastik.
42. He has denied the suggestion that the accused driver is G.N.Swastik only as stated in the statement of witnesses and therefore the charge sheet is filed against (SCCH-15) 18 MVC.1512/2014 G.N.Swastik and despite of that, now he is giving false explanation in order to help the petitioner.
43. However, he has voluntarily deposed that in the criminal case, the person to whom he has arrested and released himself is appearing and facing the trial. He has denied the suggestion that the person against whom the charge sheet is filed and the person of whom the bail bond produced are different persons and that is why, the age mentioned therein differs from each other.
44. It is also in his cross-examination that there is no mention of notice under Section 133 of MV Act and reply thereto in the copy of the index of the charge sheet in the file he has brought. However, he has denied the suggestion that the same indicates that the documents now he has produced are documents created subsequently to help the petitioner.
45. PW-5, the accused driver has produced the notarized copies of his driving licence and ration card respectively at Ex.P-26 and 27. He has stated that he is the only son for his parents. His father name is G.S. (SCCH-15) 19 MVC.1512/2014 Nagaraj and his mother name is Smt.K.V.Subbamma. The spelling of his name is "Sathwik".
46. To the question that the police have registered criminal case against him in crime No.32/14, for which he has deposed that "no". Therefore, counsel for petitioner was permitted to cross examine him by treating as hostile.
47. It is in the cross-examination of PW-5 for petitioner that he does not about the Maruthi 800 car bearing registration No.KA-04 N-1179 and he has denied the suggestion that Bagepalli police have issued notice to him with regard to the involvement of the aforesaid car in the accident.
48. However, to the question that Bagepalli police have issued notice to him calling to produce driving licence alleging that he was the driver of the aforesaid car for which he has deposed "yes". At this stage he voluntarily deposed that but he was not the driver.
49. One more question is posed to PW-5 that after receiving said notice, he was appeared before the police station, produced driving license and also put his (SCCH-15) 20 MVC.1512/2014 signature of PSR register for which he has deposed that "no". However, he has admitted the suggestion that the signature shown to him in the document at Ex.P-24 is of his signature which is exhibited as Ex.P-24(a).
50. He has also deposed that he can identify the signature of his father. However, he has deposed that he does not know if it is suggested that the signature shown to him in Ex.-24 is the signature of his father. However, for the sake of appreciation the said signature is exhibited as Ex.P-24(b).
51. PW-5 has also deposed that he does not know where he put his signature at Ex.P-24(a), but he put it on the request of police. He is a B.Com graduate. He knows to read and write Kannada as well as English. He has admitted the suggestion that he put his signature at Ex.P-24(a) when he was given bail. At this stage he voluntarily deposed that he is not the accused.
52. He has also deposed that he does not know if it is suggested that at that time i.e. at the time of his enlarging on bail in the police station, his father also with him. He has denied the suggestion that his father stood (SCCH-15) 21 MVC.1512/2014 as surety to him in the police station. He has also stated that he does not know if it is suggested that his father has put his signature at Ex.P-24(b) when he stood as surety to him/PW-5 in the police station. At this stage he voluntarily deposed that he is not the accused.
53. However, he has deposed that he knows the mobile number of his father and it is 9972766260. He has admitted the suggestion that the mobile number shown to him is of his father's mobile number which is on the back side of Ex.P-24. For the sake of appreciation, the said mobile number is exhibited as Ex.P-24(c). He has also deposed that he has no document in his possession having the signature of his father.
54. Even, PW-5 has denied the suggestion that himself and his father went to the police station and took the bail and also the suggestion that he is facing criminal trial and attending the JMFC court at Bagepalli, at this stage he voluntarily deposed that since police have told him he is attending the said court and the said case is still pending and he is appearing in the said case. In the cross-examination for 2nd respondent, PW-5 has admitted (SCCH-15) 22 MVC.1512/2014 the suggestion that on the instance of police, he is simply appearing in JMFC Court, Bagepalli.
55. Admittedly, to establish their defence as observed above, 2nd respondent has let in only the oral evidence of its administrative officer who has filed her affidavit evidence and her evidence is admittedly based on record and she has no personal knowledge about anything.
56. Admittedly, 2nd respondent has not produced any specific supportive document. It has also not at all got adduced any corroborative oral evidence. Therefore, so far the present issue, the documents on record are the police papers only.
57. If the police papers are gone through, Ex.P-1 is the FIR with complaint. Admittedly the complaint is given by one C.R.Prakash wherein it is stated that the Maruthi car bearing registration No.KA-04 N-1179 came from the opposite direction and dashed against the motor cycle. There is no mention of the name of the car driver in the FIR.
(SCCH-15) 23 MVC.1512/2014
58. However, in Ex.P-4 the charge sheet as observed above, it is stated that the accused name is Swasthik G.N. s/o Nagaraja, 22 years, Ellodu Village, Gudibande Taluk, Chikkaballapura District. PW-3 during his evidence has produced Ex.P-8 the PSR register which also shows the accused name as G.N.Sathwik s/o G.S. Nagaraja which bears the thumb impression and the signature of the accused. If the signature of the accused at Ex.P-18 is compared with the signature of PW-5 in his deposition, it appears that the signatures are similar to each other.
59. Ex.P-19 is the true copy of notice under Section 133 of MV Act issued to the 1st respondent. Ex.P-20 is the reply to Ex.P-19 wherein it is stated that the vehicle was being driven by Sathwik G.N. at the time of accident. So, Ex.P-18 to 20 are in clear consonance with the case of the petitioner and the oral evidence of PW-3.
60. But it is elicited in the cross-examination of both PWs-3 and 4 that in the index sheet of charge sheet they brought with them at the time of their deposition, there is no mention about the documents at Ex.P-18 to (SCCH-15) 24 MVC.1512/2014 20 and thereby it is the contention of 2nd respondent that they are created documents.
61. During the evidence of PW-4 he has produced true copies of notice and reply thereto at Ex.P-21 and 22 i.e. documents at Ex.P-19 and 20 respectively. Ex.P-23 is the alleged xerox copy of the driving licence of the accused driver alleged to be given by the RC owner i.e. 1st respondent.
62. There is no dispute between the parties with regard to the fact that Ex.P-23 pertains to PW-5. But it is the contention of 2nd respondent that since the driver was Swasthik who did not have valid and effective driving licence PW-5 is falsely implicated since he had valid and effective driving licence to drive the car.
63. Ex.P-24 is the bail bond alleged to be executed by the accused driver PW-5. In his cross-examination, PW-5 has admitted his signature at Ex.P-24(a). But he has deposed that he was not arrested and he is not the accused. However, mobile number at Ex.P-24(c) is admitted by PW-5 that it is his father's mobile number. (SCCH-15) 25 MVC.1512/2014
64. It is important to note that first the mobile number of his father got elicited and thereafter only Ex.P- 24(c) is confronted to PW-5. Therefore, there is nothing on record to disbelieve the case of the petitioner and the oral evidence of PWs-3 and 4 with regard to Ex.P-24 and in view of the admission of PW-5 that the signature at Ex.P-24(a) is his signature, there is nothing on record to disbelieve the document at Ex.P-24.
65. At this stage it is also important to note that PW-5 himself has admitted that he has appearing before the JMFC Court, Bagepalli with regard to the present case. Of course, he has deposed that since police have instructed him to appear before the said Court, he is simply appearing.
66. But it is important to note that admittedly he is a B.Com graduate and aged about 23 years and thus unless otherwise it is proved, it should be presumed that he is a worldly wised man. Therefore, his explanation appears to be not reliable.
67. Ex.P-25 is the case dairy dated 14.02.2014 wherein it is stated that the vehicle was seized from the (SCCH-15) 26 MVC.1512/2014 RC owner and it is came to note that the driver name is Sathwik G.N., there is no defence taken by the 2nd respondent about the charge sheet at Ex.P-5 which is consonance with the case of petitioner.
68. So, even for the sake of arguments it is accepted that Ex.P-19 to 22 are created documents then also Ex.P- 18 to 24 and 25 are in clear consonance with the case of petitioner to establish that name of the accused is Sathwik i.e. PW-5 who was driver of the car at the time of accident.
69. Moreover, during the course of evidence PW-5 has produced notarized copy of driving licence at Ex.P-26 which is nothing but Ex.P-23 and the ration card at Ex.P-27 which also clearly supports that the accused name is Sathwik. Therefore, there is nothing on record to disbelieve the explanation given by PWs-3 and 4 that due to oversight in the charge sheet the accused name is shown as Swasthik instead of Sathwik.
70. Therefore, the contention of 2nd respondent that the driver is falsely implicated holds no water. Since, 2nd respondent itself has placed its reliance on the other (SCCH-15) 27 MVC.1512/2014 police papers to establish its defence of false implication of driver and thus it cannot go beyond the police papers so far the rest of the contents.
71. Accordingly, petitioner with his oral evidence and the supportive oral evidence of PWs-3 and 4 as well as police papers observed above, has successfully proved that it was PW-5 who was driver of the car at the time of accident and the accident took place on the negligent driving of the car by PW-5.
72. To establish the accidental injuries he has suffered, petitioner with his oral evidence has also got adduced the oral evidence of PW-2 who has assessed the disability and got examined PW-6 the medical record technician to cause production of medical records.
73. In addition petitioner has produced medical records such as wound certificate and discharge summary, case sheet, x-ray films, CT scan films etc., which are in support of his case about his suffering injuries in the accident.
74. Moreover, if the cross-examination conducted on behalf of 2nd respondent to the petitioner and the (SCCH-15) 28 MVC.1512/2014 doctor is taken into consideration, even it has raised objections with regard to the nature of injuries, nature of treatment, quantum of disability as well as quantum of medical expenditure, it has not at all disputed the fact of petitioner suffering injuries in the accident.
75. Therefore, petitioner with his oral evidence and the supportive oral evidence of PWs-2 and 6 and the medical records as well as the police papers, has successfully proved that he has suffered injuries in the present accident. Accordingly, issue No.1 is answered in affirmative.
76. ISSUE No.2:- In view of answering issue No.1 in affirmative, petitioner is of course entitled for compensation. Now, in respect of quantum. It is the case of petitioner that he was aged about 40 years, was a Teacher in 1st Grade College, Sidlaghatta and had income of Rs.40,000/- p.m.
77. To establish his age petitioner apart from his oral evidence has produced the notarised copies of driving licence and the pan card respectively at Ex.P-10 and 11 which reveal his date of birth as 20.04.1973. (SCCH-15) 29 MVC.1512/2014 Accident took place on 13.02.2014. So, as on the date of accident he was aged about 40 years as per Ex.P-10 and
11.
78. In the police papers and in the medical records his age is shown as 40 years. There is no cross- examination by the other side about the age of the petitioner. Therefore, there is nothing on record to disbelieve the case of petitioner supported by the above observed documents. Accordingly, the age of petitioner is taken as 40 years, for which proper multiplier applicable is 15.
79. To prove his avocation and income, petitioner with his oral evidence has produced the salary slips for the month of November-2013 to January-2014 and the certificates issued Principle of 1st Grade College, Shidlaghatta respectively Ex.P-12 to 14.
80. Ex.P-12 reveals that the net salary of the petitioner for the month of January, 2014 was Rs.35,315/- and the gross salary was Rs.47,870/-. There is no dispute between the parties with regard to the avocation of the petitioner and thereby there is noting on (SCCH-15) 30 MVC.1512/2014 record to discard the salary of the petitioner shown in Ex.P-12. Accordingly, the average income of the petitioner is taken into consideration at Rs.36,000/- p.m.
81. Ex.P-13 and 14 are the certificates wherein it is certified that petitioner had availed totally 41 days and he has not taken any medical reimbursement with regard to the present accidental injuries.
82. It is the case of petitioner that in the accident he has suffered injuries as stated in the wound certificate. He took treatment in Government Hospital, Bagepalli and thereafter in Hosmat Hospital, Bengaluru. He was an inpatient in the hospital from 13.02.2014 to 19.02.2014. He has spent Rs.3,00,000/- towards treatment, medicines, conveyance, nourishments and attendant charges etc.
83. It is also his case that he became permanently disabled because of the accidental injuries. Petitioner has reiterated the above observed petition averments. In his cross-examination his chief evidence is denied by way of suggestions which are in turn denied by him. (SCCH-15) 31 MVC.1512/2014
84. However, it is elicited in his cross-examination that after the accident he went to government hospital, Bagepalli, Chikkaballapura district and there from, he was shifted to Hosmat Hospital. The government hospital gave him a reference letter and he has produced the same before the Hosmat hospital authority. He took first aid in government hospital.
85. It is also in his cross-examination that he was an inpatient for 7 days in Hosmat Hospital. Dr.Thomas Chandy was surgically treated him along with his team. He has undergone surgery on 13.02.2014. At the time of discharge, his condition was stable. He has produced the document to show his follow-up after discharge on 19.02.2014. He was on follow-up once in a month till October. 2014. He has denied the suggestion that he has not produced any document in that regard.
86. He has also denied the suggestion that the inpatient bill for Rs.1,76,600/- is a duplicate bill and that is why there is no seal and he has got reimbursed the said bill by his employer. But as observed above, petitioner has produced Ex.P-13. the endorsement issued (SCCH-15) 32 MVC.1512/2014 by the principle about his non claiming medical reimbursement. Of course, it is suggested that to get higher compensation Ex.P-13 and 14 are created. But to establish that 2nd respondent has not at all let in any such evidence.
87. It is also elicited in his cross-examination that at the time of accident, his salary was around Rs.47,000/- and odd. Now he is drawing salary of Rs.54,000/- and odd and he was not demoted. He has denied the suggestion that therefore, the discomforts he has stated in paras Nos.4 and 5 of his affidavit evidence are all false.
88. It is also in his further cross-examination that he took initial treatment in Hosmat Hospital. After discharge from Hosmat Hospital, he took treatment in Shirdi Sai hospital. After 8 months from discharge from Hosmat Hospital, he went to Shirdi Sai hospital.
89. Basing on that the question is posed to him whether he was referred by Hosmat Hospital or he voluntarily gone to Shiradi Sai hospital, for which he has answered that the doctor who treated him in Hosmat (SCCH-15) 33 MVC.1512/2014 Hospital i.e., Dr. Vijay Girish is the visiting doctor to Shirdi Sai hospital, therefore, he went there.
90. He has also deposed that he took further treatment in Shirdi Sai hospital in continuation to his earlier treatment in Hosmat Hospital. He has admitted the suggestion that in Hosmat Hospital discharge summary, it is stated that his condition was stable at the time of discharge.
91. It is also in his cross-examination that he has told about the history of injuries in Shirdi Sai hospital also. He underwent surgery for replacement of implants in Shirdi Sai hospital. Basing on that one more question is posed to the petitioner to the fact that whether he admitted to Shirdi Sai hospital as the treatment given in Hosmat Hospital was not correct, for which he has deposed that since his body did not respond to the earlier treatment, he admitted to Shirdi Sai hospital for further treatment.
92. To the question that whether he can produce the case sheet with regard to alleged inpatient period from 09.02.2015 to 11.02.2015 in Shirdi Sai hospital for (SCCH-15) 34 MVC.1512/2014 which he has deposed that he has to verify with the hospital authority. However, subsequently, he got produced the case record at Ex.P-29A through PW-6 which is in support of the case of petitioner in that regard.
93. PW-2, the doctor who has assessed the disability has filed his affidavit evidence wherein he has stated that petitioner was admitted to their hospital i.e. Hosmat Hospital with a RTA dated 13.02.2014 at about 10:30 a.m. On examination it is found that petitioner has suffered for open fracture of right femur (comminuted); open fracture of right tibia and fibula and avulsion of nail bed of right index finger.
94. It is also in his affidavit evidence that petitioner was admitted on 13.02.2014 and was discharged on 19.02.2014. In the mean while on 13.02.2014 petitioner underwent surgery in the form of interlocking nailing right leg and right femur; additional circlage wiring of right femur and the index finger wound was treated with dressings. He was discharged in stable condition. (SCCH-15) 35 MVC.1512/2014
95. He has also deposed that he has examined the petitioner on 17.10.2014 for assessment of disability. On clinically examination and radiological examination as well as on the complaints of the petitioner, it is found that petitioner is having permanent physical impairment to the right upper limb at 10% which comes to the whole body at 3% and right lower limb at 56% which comes to the whole body at 19%. Thus, petitioner is having totally disability at 22%.
96. He has also deposed that petitioner is in need of one more surgery for removal of implants which may cost around Rs.90,000/- and petitioner will have to avoid strenuous activity for 6 months after the implant removal in order to for the screw holes to fill up. In his chief evidence he has produced inpatient file, out patient file and x-ray films respectively at Exs.P-15 to 17.
97. In his cross-examination it is suggested that the injuries he has referred in his affidavit evidence and the injuries stated in the wound certificate are not tallying, for which he has stated that only the aversion of nail bed (SCCH-15) 36 MVC.1512/2014 of right index finger is not mentioned in the wound certificate.
98. If the documents produced by the petitioner are taken note off, Ex.P-5 and 6 are the respectively wound certificate and discharge summary of hosmat hospital which reveal that the petitioner admitted to their hospital with the history of RTA 13.02.2014 and he was admitted to the hospital on the very day and was discharged on 19.02.2014.
99. It is also there that petitioner was diagnosed for Grade-I compound fracture, right tibia and femur. He was treated surgically in the form of CRIF with IMIL nail for tight tibia and ORIF with IMIL nail for right femur on 13.02.2014 and was discharged in stable condition.
100. Ex.P-15 is the inpatient file produced by the PW-2 which is in corroboration with the wound certificate and the discharge summary at Ex.P-5 and 6. The OP file at Ex.P-16 is in support of the case of petitioner about his follow-up treatment in hosmat hospital.
101. Ex.P-29A is the case sheet produced by PW-6 is in corroboration with the further chief evidence of (SCCH-15) 37 MVC.1512/2014 petitioner with regard to the second admission for replacement of implants. The x-ray films are also in corroboration with the oral evidence of petitioner and the doctor i.e. PW-2.
102. So, if the entire evidence is taken into consideration, it can be safely held that petitioner has suffered fracture of grade-I compound and right tibia and femur and he was treated surgically. He was inpatient in the Hosmat hospital from 13.02.2014 to 19.02.2014 i.e. for 7 days and at the second time from 09.02.2015 to 11.02.2015 i.e. for 3 days in Shirdi Said hospital. He was treated surgically and was discharged in stable condition.
103. To prove the medical expenditure petitioner with his oral evidence has produced at Ex.P-8 the hospital and medical bills totally 56 in nos. amounting to Rs.2,30,709.74 and Ex.P-30 the hospital and medical bills with regard to second admission totally 20 in nos. amounting to Rs.1,17,996.54.
104. The bill at Sl.No.1 at Ex.P-8 series is the inpatient bill of Hosmat Hospital amounting to Rs.1,76,600/- and it is shown there that the advance (SCCH-15) 38 MVC.1512/2014 amount is Rs.1,80,000/-, after deducting the same the amount remained is Rs.3,400/.
105. The pharmacy bills are not included in the inpatient bill. There is no mention with regard to corporate bill. So, it appears that the said bill is not reimbursed by his employer which is also supported by the certificate of the employer at Ex.P-13. Moreover the advance bills are also produced by petitioner at Sl.No.1s(a) and 1(d) totally for Rs.1,80,000/-. Therefore, it is clear that petitioner himself has paid the inpatient bill at Sl.No.1 in Ex.P-8 series amounting to Rs.1,76,000/-.
106. The bills at Sl.Nos.2 to 42 are the pharmacy bills of Hosmat hospital for the inpatient period. As observed above, pharmacy bills are not included in the inpatient bill al Sl.No.1. So, petitioner is entitled for the bills at Sl.Nos.2 to 42 as well.
107. The bills at Sl.No.43 to 46 are the physiotherapy care receipts with regard to the physiotherapy treatment. The bills Sl.Nos.47 to 55 are the OP Cash bills of Hosmat hospital. The bill at Sl.No.56 (SCCH-15) 39 MVC.1512/2014 is the Lab bill. Therefore, petitioner is entitled for all those bills totally amounting to Rs.2,30,709.74. (Total the bills)
108. The bill at Sl.No.1 at Ex.P-30 series is the inpatient bill of Sri Shirdi Sai Hospital amounting to Rs.81,245/- wherein the amount received is shown as Rs.81,000/- due from patient is shown as 0.00. It is the suggestion put forth on behalf of 2nd respondent that the said bill is duplicate bill and therefore, it does not bear seal and signature. On plain perusal of the said bill the suggestion appears to be correct.
109. However, petitioner has produced advance paid receipts at Sl.Nos.1(a) and 1(b) totally amounting to Rs.81,000/- which is deducted in the inpatient bill at Sl.No.1. There is no mention that the inpatient bill is corporate bill. Moreover, it is in Ex.P-13 that no medical reimbursement is given to the petitioner. Therefore, there is nothing on record to disbelieve the case of petitioner that the said amount paid by him.
110. The bills at Sl.Nos.2 and 4 are the OP cash bill of Hosmat Hospital. The bill at Sl.Nos.4 to 10 are the (SCCH-15) 40 MVC.1512/2014 private medical store i.e. Trust, Chemists & Druggists. The bill at Sl.Nos.11 to 13 are the Lab bills. The bill at Sl.No.14 is the x-ray bill. The other bills are the private medical stores' bills.
111. In view of nature of injuries suffered by the petitioner and the surgeries he has undergone and the hospital wherein he took treatment are private hospital are taken into consideration, there is nothing on record to disbelieve the said medical expenditure. Accordingly, the petitioner is entitled for the said medical expenditure at Ex.P-8 and 30 amounting to (Rs.2,30,709.74 + Rs.1,17,996.54) Rs.3,48,706.28 rounded off to Rs.3,50,000/-.
112. It is in the evidence of PW-2 that the petitioner is having permanent physical impairment to the whole body at 3% because of right upper limb and 19% because of the right lower limb thus total whole body disability at 22%. However, it is an admitted fact that petitioner is continued in the service and he is not demoted and his salary is hiked. Therefore, he has no future loss of income.
(SCCH-15) 41 MVC.1512/2014
113. However, considering the quantum of disability stated by the PW-2 and the age of petitioner and the avocation, it is thought just and proper to take the whole body disability at 16% for assessment of loss of amenities and comforts and for permanent physical impairment. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs. 60,000/-
Loss of income during laid up period Rs. 40,000/-
Attendant charge, Diet, Conveyance,
And other charges Rs. 40,000/-
Medical Expenditure Rs.3,50,000/-
Future Medical Expenditure Rs. 30,000/-
Loss of Amenities & Comfort Rs. 75,000/-
For Permanent Disability Rs.1,00,000/-
Total: Rs.6,95,000/-
114. Petitioner has sought interest at the rate of 12% p.a. Considering the cost of living on the date of accident, it is thought just and proper to award interest at 9% p.a. from the date of petition till the realization of compensation amount in its entirety.
115. Now, in respect of liability. There is no dispute between the parties with regard to the fact that 1st respondent is the RC owner and 2nd respondent is the (SCCH-15) 42 MVC.1512/2014 insurer of car. Of course, 2nd respondent has contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents. During the course of evidence it has also took up the defence that there is false implication of car driver because of driving licence. However, it has failed to establish that.
116. On the other hand, the charge sheet at Ex.P-5 reveals that, the jurisdictional police have not charge sheeted the car driver for the offences punishable under Section 279 and 338 of IPC. There is no allegation with regard to any of the offences punishable under any of the provisions of MV Act.
117. Therefore, it appears that as on the date of accident, the accused driver i.e. PW-5 did possess valid and effective driving licence and the car was also having valid and effective documents which were in order and in force on the date of accident. Therefore, 1st respondent being the RC owner is liable to pay the compensation and 2nd respondent being the insurer is liable to indemnify the said liability.
(SCCH-15) 43 MVC.1512/2014
118. Accordingly, petitioner is entitled for compensation of Rs.6,95,000/- together with interest at 9% p.a. on Rs.6,65,000/- (excluding the future medical expenses) from the date of petition till the realization of the compensation in its entirety from 2nd respondent. Accordingly, issue No.2 is answered.
119. ISSUE No.3 :- From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.6,95,000/- together with interest at 9% p.a. on Rs.6,65,000/- (excluding the future medical expenses) from the date of petition till the realization of the compensation amount in its entirety from 2nd respondent.
2nd respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount, petitioner shall deposit Rs.1,50,000/- in Karnataka Bank City Civil Court Branch, Bengaluru for a period of 5 years and the remaining (SCCH-15) 44 MVC.1512/2014 compensation amount together with interest and costs ordered to be released to the petitioner individually through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-.
Draw a decree accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open Court by me on this the 29th day of September, 2015.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Srihari .K PW2: Dr. Krishna Prasad PW3: Munireddy .V PW4: Altaf Pasha PW5: G.N. Sathwik PW6: Nagaraj .A
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: R. Vijayalakshmi LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 : True copy of FIR with Complaint, Ex.P2 : True copy of spot mahazar, Ex.P3 : True copy of IMV report, Ex.P4 : True copy of charge sheet, (SCCH-15) 45 MVC.1512/2014 Ex.P5 : True copy of wound certificate, Ex.P6 : Discharge summary, Ex.P7 : Prescriptions (22 in nos.), Ex.P8 : Hospital and medical bills (56 in nos.) amounting to Rs.2,30,709.74, Ex.P9 : X-ray films (19 in nos.), with 2 radiological reports, Ex.P10 : Notarised copy of driving license ((original shown for perusal), Ex.P11 : Notarised copy of Pan card (original shown for perusal), Ex.P12 : Salary slips (3 in nos.) for the month of November 2013 to January 2014, Ex.P13 : Certificate issued by Principal dtd.16.09.2014 with regard to non claiming medical reimbursement, Ex.P14 : Certificate issued by Principal dtd.16.09.2014 with regard to taking earned leave. Ex.P15 : Inpatient file, Ex.P16 : Out patient file, Ex.P17 : X-ray films (2 in nos.) with report. Ex.P18 : True copy of PSR Ex.P19 : True copy of notice u/s 133 of MV Act Ex.P20 : True copy of reply to notice at Ex.P19 Ex.P21 : True copy of Notice u/s 133 of MVAct, Ex.P22 : True copy of reply to Ex.P21, Ex.P23 : True copy of driving license of the accused driver by name Sri. Satwik, Ex.P24 : True copy of bail bond executed driver, Ex.P25 : True copy of case dairy dtd.14.02.2014 Ex.P26 : Notarised copy of driving license (original shown for perusal) Ex.P27 : Notarised copy of ration card (original shown for perusal) Ex.P28 : discharge summary Ex.P29 : Lab reports 2 in nos Ex.P30 : Hospital and medical bills (20 in nos.) amounting to Rs.1,17,996.54 Ex.P31 : X-ray-ray films (9 in nos.) Ex.P28A Authorization letter, Ex.P29A Case record.(Double Entry) (SCCH-15) 46 MVC.1512/2014 LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
Ex.R1 : Authorisation letter, Ex.R2 : Certified copy of the policy with schedule Ex.R3 : Copy of Notice sent by insurance company to the insured Ex.R4 : Endorsement with regard to OD claim particulars of vehicle bearing no.KA-04-N-1179 (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.