Bangalore District Court
Who Was Also An Eye Witness vs No.2 on 26 August, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 26th day of August, 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.3556/2015
Sri. Kusumakara. R.M., ..... PETITIONER
S/o. Late Mandalagiraiah,
Aged about 38 years,
R/o. Rayagonahalli Village,
Madikehalli Post,
Kothagere Hobli,
Kunigal Taluk,
Tumkur District.
(By Sri. Jayaprakash. G.M., Adv.,)
V/s
1. Hanumanthaiah. S.N., ..... RESPONDENTS
S/o. Nagaraju,
Aged about 35 years,
No.371, Maruthi Complex,
Magadi Main Road,
Gollarahatti,
Opp. Ravindra Palace,
Bangalore - 91,
(The R.C. Owner of the Bike bearing
Registration No.KA-02-HS-2256)
2. The Manager,
The United India Insurance
Company Ltd.,
5th and 6th Floor,
Krishi Bhavan,
2 M.V.C.NO.3556/2015
(SCCH-7)
Nrupathunga Road,
Bangalore - 560 018.
(Policy No.071483/31/14/01/00002791,
Valid from 10.10.2014 to 09.10.2015)
(R1- Exparte)
(R2- By Smt. R. Sharadamba, Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 20,00,000/- with interest at the rate of 12% p.a., from the date of filing of this petition till realization and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 26.04.2015 around 5-00 p.m., was the bad day on the part of him. On that particular day, he was came to his friend house by name Muddegowda, after that, he came towards Kunigal and he was waiting to Auto on footpath in front of the Muiddegowda House, at that point of time, one Bike bearing Registration No.KA-02-HS-2256 came from Nilathahalli to Kunigal side riding by its Bike rider in very high speed with rash and negligent manner and dashed against him and caused this accident. Due to this accident, he sustained grievous injuries.
b) After this accident, he has been shifted to Sparsh Hospital, B.G. Nagara, in the vehicle by paying Rupees 3,000/- and he admitted as an inpatient and undergo surgery as admitted as an inpatient from 26.04.2015 to 08.05.2015. He was 3 M.V.C.NO.3556/2015 (SCCH-7) incurring more than Rupees 3,00,000/- for mediations and traveling expenses thereon and till today, he has taken follow-up treatment and medicines as periodically.
c) Before sustaining of injuries in this accident, he was maintained good health, aged 38 years and he was doing Milk wending business and agriculture and he was earning of Rupees 30,000/- per month and leading his livelihood by maintaining his family members.
d) Due to injuries, he is not in a normal condition and he is not at all attending or doing any work because his both bones of both legs Tibia and fibula fracture with complete displacement and he from the day of sustaining of injuries in this accident. Hence, he is suffering with physically and mentally pain and agony with loss of money. Hence, he is depending on others for her livelihood.
e) This accident is purely due to the rash and negligent rider of Bajaj Bike bearing Registration No.KA-02-HS-2256. The Kunigal Police have registered a criminal case as against the rider of the said Bike in Crime No.133/2015 under Section 279, 337 and 338 of IPC R/w Section 187 of IMV Act.
f) The offending Bajaj Bike having insurance with the Respondent No.2 and policy was in force at the time of accident. Hence, the Respondents No.1 and 2 are jointly and severally held liable to pay compensation to him. Hence, this petition.
3. Though the notice was duly served on the Respondent No.1 through RPAD, he was remained absent and hence, he is placed as exparte on 12.01.2016.
4 M.V.C.NO.3556/2015(SCCH-7)
4. Initially, though the notice was duly served on the Respondent No.2, he was remained absent and hence, he was placed as exparte on 14.10.2015. Later, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel and as per the Order dated 16.11.2015 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.2 is taken on file. The Respondent No.2 has filed the written statement.
5. 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 vexatious and frivolous, so also, it is contrary to law and facts of the case.
b) It without prejudice to the above raised contention regarding denial of the policy, which was in force, the Petitioner were to prove the existence of policy and the Petitioner were get a compensation, the following condition to be fulfilled by the owner/insured of the vehicle. It prays leave to traverse the other facts of the case.
c) The rider of the offending Motor Cycle was not holding valid driving licence to drive the said class of vehicle and the Respondent being the owner of the said vehicle, without taking proper care and caution, he allowed the driver to drove the same, who was not holding the licence, hence, he has violated the policy terms and conditions. In this regard, the Petitioner is put to strict proof of the same.
d) As per the Police records, the Petitioner was walking/crossing the road, without looking into the oncoming vehicle, due to sudden horn of the vehicle, he himself fell down 5 M.V.C.NO.3556/2015 (SCCH-7) and sustained injuries, only to fetch a compensation, wrong complaint was lodged on next day, in collusion with the owner of the vehicle.
e) The owner of the said vehicle had not informed regarding the alleged accident until it received the summons from the Hon'ble Tribunal and he has not furnished the particulars of the policy as contemplated under section 134 (c) of the M.V. Act, further, the rider also not furnished the information as contemplated under Section 133 of the M.V. Act, the Petitioner only to fetch compensation in collusion with the Police, created the said records. Further, there is no nexus between the accident and injuries sustained by the Petitioner, further, non-compliance of Section 158(6) of the Act.
f) Further, if the Petitioner were to prove that, the vehicle was validly insured with it and were to prove that, there was a contributory negligence, in such a situation, the liability of it, if any, shall be as per the conditions of Insurance Policy issued against the said vehicle and the insured is obligated to satisfy and act in accordance with Section 3 and 66 of M.V. Act, 1988 and Rule 3 of the Central Motor Vehicles Act.
g) The liability of it, if any, is subject to limitation and provision of the Motor Vehicles Act and terms and conditions of the policy of insurance issued to the owner of the vehicle and compliance under Section 64 VB of the Insurance Act.
h) The complaint was lodged in collusion with the owner and also Kunigal Police and the Police wrongly registered a case in Crime No.133/2015.
6 M.V.C.NO.3556/2015(SCCH-7)
i) It craves of this Hon'ble Tribunal to file an application under Section 170(a) and (b) of the Act, in the event, 1st Respondent fails to contest the petition on merits were to collude with the claimants, it may please be permitted to avail all the defences available to the Respondent No.1 and also be permitted to avail the defence available under Sections 147 and 149(2) of the Motor Vehicles Act.
j) It craves leave of this Hon'ble Tribunal to file additional statement, in case, any fresh information is available in future and also to amend the same under the changed circumstances of the case and if the Petitioner were to produce policy particulars.
k) The liability of it, if any, shall be as per the conditions of Insurance Policy issued against the said vehicle.
l) The compensation claimed by the Petitioner of Rupees 20,00,000/- with interest in on excessive.
m) The Petitioner is called upon to state on oath that, he has not filed any other claim petition for the alleged accident before any Tribunal in any other place seeking compensation. Hence, prayed to dismiss the petition with costs.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent riding of the Bajaj 7 M.V.C.NO.3556/2015 (SCCH-7) Bike bearing Reg.No.KA-02-HS-
2256 by its rider and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
7. 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.16. On the other hand, the Respondent No.2 has not adduced any evidence on his behalf.
8. Heard the arguments.
9. 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
6,37,803/- with interest at
the rate of 9% p.a.
(excluding future medical
expenses of Rupees
20,000/-) from the date of
the petition till the date of
payment, from the
Respondent No.2.
Issue No.3 : As per the final Order,
for the following;
8 M.V.C.NO.3556/2015
(SCCH-7)
REASONS
10. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, on 26.04.2015, he and his younger sister Kavitha were waiting on the footpath at 5-00 p.m., at that time, the Motor Cycle bearing Registration No.KA- 02-HS-2256 came from Neelathahalli towards Kunigal with very high speed, rash and negligent manner by its rider and dashed to him and due to the said impact, he fell down and the rider of the Motor Cycle moved it on his legs and his sister had shifted him to Kunigal Hospital for treatment through unknown vehicle. He has further stated that, he had sustained fracture injury on his both legs and for further treatment, he was shifted to Adichunchanagiri Hospital, B.G. Nagar, wherein, by admitting as an inpatient from 26.04.2015 to 04.05.2015, he took treatment to the said accidental injuries.
11. It is pertinent to note here that, though the accident was taken place on 26.04.2015 at 4-50 p.m., the complaint is lodged on 27.04.2015 at 9-30 p.m., by the younger sister of the Petitioner, who was also an eye witness, which disclosed that, there is one day delay in lodging the complaint in respect of the accident in question, which caused to the Petitioner.
12. No doubt, the P.W.1 in his cross-examination has stated that, the road, on which, the accident was taken place is Bengaluru - Hassan Road and on either side of the said road, there was footpath and before the accident, he had not seen the offending Motor Cycle and after the accident, he had not enquired whether the offending Motor Cycle caused damages or 9 M.V.C.NO.3556/2015 (SCCH-7) not in the alleged accident. He has further stated that, he does not remember when he was discharged from Sparsh Hospital.
13. But, based on the said evidence elicited from the mouth of P.W.1 during the course of cross-examination by the Respondent No.2, the above said entire evidence of P.W.1, which has been stated by him in the examination-in-chief cannot be thrown away, as, to corroborate and to consider his oral version and to consider his case, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 Seizure Panchanama, Ex.P.5 Wound Certificate, Ex.P.6 MVI Report, Ex.P.7 Charge Sheet and Ex.P.10 Discharge Summary, which disclosed that, the entire negligence is on the part of the rider of the offending Motor Cycle bearing Registration No.KA-02-HS- 2256 in the commission of the said road traffic accident and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident, wherein, the Petitioner had sustained two grievous injuries and three simple injuries and immediately after the accident at 7-00 p.m., itself, he was admitted in Adichunchanagiri Hospital to take treatment to the said accidental injuries and thereafter, he was shifted to AIMS-Sparsh Hospital, wherein, by admitting as an inpatient from 26.04.2015 to 04.05.2015, i.e., for 9 days, he took treatment to the said accidental injuries, which is clear from the following discussion. Further, it is clear from the said medical documents that, immediately after the accident, the younger sister of the Petitioner, who was accompanied with the Petitioner at the time of accident and who was also an eye witness of the said road traffic accident, had shifted the Petitioner to the Hospital to take treatment to the accidental injuries and as such, there is no chance either to the Petitioner or his younger sister to 10 M.V.C.NO.3556/2015 (SCCH-7) lodged a complaint immediately after the accident. Further, the P.W.1 in his cross-examination has clearly stated that, at the time of accident, he was waiting for Auto Rickshaw along with his younger sister Kavitha. R.M. and after the accident, the rider of the offending Motor Cycle had not stopped the Motor Cycle on the accidental spot and the public informed him about the registration number of the offending Motor Cycle and his sister lodged a complaint about the accident and his sister had shifted him to the Hospital for treatment after the accident. He has further clearly stated that, initially, he was shifted to Kunigal Government Hospital, wherein, no treatment is given to him and thereafter, he was shifted to Adhi Chunchanagiri Sparsha Hospital. Further, to consider its specific defence, the Respondent No.2 has not adduced any evidence on its behalf. Further, the P.W.1 has clearly denied the suggestions put to him by the Respondent No.2 during the course of cross-examination that, the alleged accident was taken place due to his own negligence, as, at the time of accident, he was standing on the road and there was no negligence on the part of the rider of the Motor Cycle. From this, it is made crystal clear that, even though, the Respondent No.2 has cross-examined the P.W.1, nothing has been elicited from his mouth to consider its specific defence.
14. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the younger sister of the Petitioner has lodged Ex.P.2 Complaint before the Kunigal Police as against the rider of the Motor Cycle bearing Registration No.KA-02-HS-2256 by alleging that, on 26.04.2015 at 4.50 P.M., when she was standing along with his brother, i.e., the Petitioner, in front of house of Late Muddegowda on the left side footpath for waiting 11 M.V.C.NO.3556/2015 (SCCH-7) Auto Rickshaw, at that time, the rider of the offending Motor Cycle bearing Registration No.KA-02-HS-2256 came with very high speed, rash and negligent manner from Neelathhalli towards Kunigal and dashed to his brother and due to which, his brother fell down and his two legs are fractured and also sustained simple injuries and the rider of the offending Motor Cycle fled away from the accidental spot and his brother was shifted to Adichunchanagiri Sparsh Hospital and as such, the delay is caused in lodging the complaint and as such, she prayed to take necessary legal action as against the rider of the offending Motor Cycle and based on the said Ex.P.2 Complaint, the said Police have registered a criminal case as against the rider of the offending Motor Cycle for the offences punishable under Section 279 and 337 of IPC under Crime No.133/2015. The reason for delay in lodging the complaint is clearly explained by the Complainant in Ex.P.2 complaint itself, i.e., hospitalization.
15. The contents of Ex.P.3 Spot Panchanama, Ex.P.4 Vehicle Seizure Panchanama and Ex.P.6 MVI Report further clearly disclosed that, at the time of accident, the Petitioner was standing by the left side footpath and there was no negligence on the part of the Petitioner in the road traffic accident and the entire negligence is on the part of the rider of the offending Motor Cycle bearing Registration No.KA-02-HS-2256 and if the rider of the offending Motor Cycle could have taken a little care while riding it at the time of accident, he could have avoided the said road traffic accident. The damages caused to the said offending Motor Cycle are clearly mentioned in Ex.P.6 MVI Report, which clearly disclosed about the terrific impact of the said accident. It is also clearly mentioned in Ex.P.6 MVI Report that, the said 12 M.V.C.NO.3556/2015 (SCCH-7) accident was not occurred due to any mechanical defects of the said offending Motor Cycle.
16. The contents of Ex.P.5 Wound Certificate clearly disclosed that, due to history of road traffic accident hit by Motor Bike on 26.04.2015 at 5-45 p.m., near Kapanipalya, the Petitioner was brought to Adichunchanagiri Hospital and Research Centre on 26.04.2015 at 7-00 p.m., and on examination, it is found that, he had sustained swelling and tenderness over face left leg, swelling and tenderness over face right leg, 4 x 3 cm abrasion over the right side and forehead bleeding, 3 x 4 cm abrasion over knee right shoulder joint and tenderness over the chest and X-ray report shows both bone of both leg tibia fracture, i.e., two grievous injuries and three simple injuries.
17. The contents of Ex.P.10 Discharge Summary, Ex.P.15 Case Sheet and Ex.P.16 X-ray Films disclosed that, by admitting as an inpatient from 26.04.2015 to 04.05.2015, i.e., for 9 days, the Petitioner took treatment to the said accidental injuries at AIMS Sparsh Hospital and during the course of treatment, it is finally diagnosed bilateral tibia fibula fracture and with history of road traffic accident on by Motor Bike on 26.04.2015, sustained injuries to both legs.
18. The P.W.2, who is a personally treated Doctor has also clearly stated in his examination-in-chief that, the Petitioner came with history of road traffic accident on 26.04.2015 hit by Motor Bike at 5-00 p.m., near Kapanipalya Kunigal Taluk and he was admitted as an inpatient on 26.04.2015 to 04.05.2015 and at the time of admission, the injuries were recorded, i.e., swelling 13 M.V.C.NO.3556/2015 (SCCH-7) and tenderness over the both leg, abrasion over the right head, abrasion measuring about 3 x 4 cms. right shoulder joint and tenderness over the right chest and X-ray taken reveal fracture both bones tibia and fibula of the both leg, with displacement and both the injuries were grievous in nature and he was discharged on 04.05.2015.
19. From the said medical evidence as well as the oral evidence of P.W.1 and P.W.2, it is clearly proved that, in the said road traffic accident, the Petitioner had sustained two grievous injuries and three simple injuries and by admitting as an inpatient from 26.04.2015 to 04.05.2015, i.e., for 9 days, he took treatment to the said accidental injuries at AIMS Sparsh Hospital and he had initially taken treatment at Adichunchanagiri Hospital immediately after the accident.
20. The contents of Ex.P.7 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to very high speed, rash and negligent manner of riding of the offending Motor Cycle bearing Registration No.KA- 02-HS-2256 by its rider itself, the road traffic accident was taken place on 26.04.2015 at about 5.00 P.M., in front of house of Muddegowda, which was coming from Neelathahalli towards Kunigal by its rider and dashed to the Petitioner, who was standing on the left side of the footpath and due to the said impact, the Petitioner had sustained fracture injuries on his both left and right legs, which are grievous in nature and also sustained injuries on her left forehead, right shoulder and chest and also sustained simple injuries and the rider of the offending Motor Cycle did not care to give treatment to the Petitioner and he fled away from the accidental spot along with the Motor Cycle 14 M.V.C.NO.3556/2015 (SCCH-7) and even he did not informed to the nearest Police Station about the accident and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the rider of the offending Motor Cycle for the offences punishable under Section 279, 337 and 338 of IPC R/w Section 187 of M.V. Act. There is no allegation leveled by the Investigation Officer in Ex.P.7 Charge Sheet as against the Petitioner about his negligence in the commission of the said road traffic accident.
21. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the rider of the offending Motor Cycle bearing Registration No.KA-02-HS-2256 in the commission of the said road traffic accident and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and the said offending Motor Cycle bearing Registration No.KA- 02-HS-2256 as well as its rider are very much involved in the said road traffic accident, wherein, the Petitioner had sustained two grievous injuries and three simple injuries. Accordingly, I answered Issue No.1 in the Affirmative.
22. ISSUE NO.2 :- The P.W.1, who is the Petitioner in his cross-examination has stated that, his date of birth is 06.07.1977. The Petitioner has also produced Ex.P.8 Adhaar Card relating to him, which disclosed that, his birth year is 1977. The date of accident is on 26.04.2015. From these materials, it is made crystal clear that, as on the date of accident, the Petitioner was 38 year old. Hence, the age of the Petitioner is considered as 38 years at the time of accident.
15 M.V.C.NO.3556/2015(SCCH-7)
23. The P.W.1 has stated that, prior to the accident, he was doing agricultural work in his agricultural lands by growing vegetables and commercial crops and he has also doing milk business and vegetable business and out of which, he was earning Rupees 25,000/- to 30,000/- per month. To consider the avocation and income, the Petitioner has not produced any authenticated documents. Even the Petitioner has not produced the RTC Extract of his agricultural lands to show that, he has own agricultural lands. Though, the P.W.1 in his cross- examination has stated that, in his land, coconut trees are there and also he is growing vegetables, to consider the same, no scrap of papers has been produced. In this regard, he has stated that, he has not produced any documents to show that, he is also doing milk business by keeping cows. Even the Petitioner has not produced his Bank statements. Hence, the said evidence of P.W.1 in respect of the avocation and income at the time of accident cannot be believed and accept. However, at the time of accident, the Petitioner was 38 years old, which disclosed his family status and by considering the same, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 10,000/- p.m., at the time of accident. Hence, the notional income of the Petitioner is considered as Rupees 10,000/- per month at the time of accident.
24. The P.W.1 has stated that, when he was admitted in the Hospital, he underwent surgery on his both legs and implants are inserted and also given treatment to the other injuries. He has further stated that, at the time of discharge, he was advised not to work for period of one year and take follow-up treatment once in 15 days. The P.W.2 has stated that, the Petitioner was discharged on 04.05.2015 with advise that, walk 16 M.V.C.NO.3556/2015 (SCCH-7) with helper and walker, flexion and extension of both knee and ankle joint and regular check up once a month and he is used to come for regular check up, on the dates on 13.06.2015, 28.05.2015 and 30.12.2015 and findings and advice recorded in the case sheet. It is also mentioned in Ex.P.5 Wound Certificate that, in the said road traffic accident, the Petitioner had sustained swelling and tenderness over face left leg, swelling and tenderness over face right leg, 4 x 3 cm abrasion over the right side and forehead bleeding, 3 x 4 cm abrasion over knee right shoulder joint and tenderness over the chest and X-ray report shows both bone of both leg tibia fracture. It is also clearly mentioned in Ex.P.10 Discharge Summary, Ex.P.15 Case Sheet and also shown in Ex.P.16 X-ray Films that, during the course of treatment, it is finally diagnosed bilateral tibia fibula fracture and during the course of treatment CRIF with IM nailing on 27.04.2015. He has also clearly mentioned in Ex.P.10 Discharge Summary that, the Petitioner is advised to partial weight bearing with help of walker for 2 weeks and look for soakage fever discharge in case review SOS along with medication. Since, the Petitioner had sustained fracture injuries on his both legs and it is clear from the said medical documents that, during the course of treatment, implants are inserted to the fracture site, at the time of discharge, the Petitioner was advised to take follow-up treatment along with medication. Therefore, the nature of injuries sustained by the Petitioner in the said road traffic accident, line of treatment, length of treatment and follow-up treatment to the said accidental injuries as stated by the P.W.1 and P.W.2, can very well be believed and accept.
25. The P.W.1 has stated that, after the accident, without the attendant, he is not in a position to walk properly and he is 17 M.V.C.NO.3556/2015 (SCCH-7) unable to do the day today activities and due to which, he is facing financial problems and to obtain the loan to lead his life.
26. The P.W.2 has stated that, the Petitioner is re- examined on 28.03.2016. By considering the movements of both side knee and ankle, right and left mussels wasted about grade 4, mobility component of both lower limb and stability component and consider the difficulties of the Petitioner, which, he is suffering due to the accidental injuries, the P.W.2 has opined that, the total body disability of right is 15% and left is 13% and total body is 28%. He has further stated that, the disability is assessed according to disability evolution and guidelines issued by Ministry of Social Justice and Employment Gazette dated 03.06.2001. The P.W.2 has produced Ex.P.13 OPD Slip and Ex.P.14 Disability Evaluation Form.
27. But, only based on the said oral version of P.W.1 and P.W.2 coupled with the contents of the above said medical documents, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from total body disability of 28%, as, the Petitioner has utterly failed to prove his avocation and income at the time of accident and though the P.W.2 is a personally treated Doctor, he has not specifically assessed the permanent physical and functional disability of the Petitioner, which he is suffering from the said accidental injuries. Further, the P.W.2 in his cross-examination has stated that, 2-3 years required for union of fracture of bones, tibia and fibula and now the said fracture is united and now the Petitioner is able to walk independently and there is no immobilization. From the said evidence of P.W.2, it appears that, now the fractures are united and the Petitioner is able to walk independently. Further, 18 M.V.C.NO.3556/2015 (SCCH-7) the P.W.2 has stated that, he has advised physiotherapy treatment for loss of muscle strength and if the Petitioner taken further physiotherapy treatment, there will be improvement and he has advised for exercise for improvement of reduction of restriction of flexion and extension, dorsiflexion and if the Petitioner had taken regular exercise and physiotherapy treatment, in future, the extent of disability will be reduced. From the said evidence of P.W.2, it is further made crystal clear that, even after the assessment of disability, the Petitioner had taken physiotherapy treatment as per the advise of P.W.2, the restriction of movements and extent of disability as stated by the P.W.2 would be definitely reduced. Further, the P.W.1 in his cross-examination has clearly stated that, now he is doing agricultural work in his own agricultural lands and now he is using same slipper to his both foot. From the said evidence of P.W.1, it is further made crystal clear that, the accidental injuries are fully recovered and as such, the Petitioner now doing the same work without any difficulties. Hence, the said extent of 28% total body disability as stated by the P.W.2, cannot be believed and accept.
28. However, in the said road traffic accident, the Petitioner had sustained two grievous injuries and three simple injuries and by admitting as an inpatient from 26.04.2015 to 04.05.2015, i.e., for 9 days, he took treatment to the said accidental injuries at AIMS Sparsh Hospital and the Petitioner is still having implants in situ and at the time of accident, the Petitioner was 38 year old, by considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is definitely suffering from permanent physical and functional disability to some extent. By considering the same, 19 M.V.C.NO.3556/2015 (SCCH-7) this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 20% to the whole body, which is believable and acceptable one. Hence, the Petitioner is entitled for the compensation under the following heads.
29. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 20%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 20%.
30. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 38 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 15.
31. As the Petitioner is suffering from permanent physical and functional disability of 20% to the whole body. The notional income of the Petitioner is already considered as Rupees 10,000/- per month. Therefore, the loss arising out of the said 20% disability for monthly income of Rupees 10,000/- by applying multiplier 15 comes to Rupees 3,60,000/-, i.e., (Rs.10,000/- x 12 x 15 x 20%).
32. As per Ex.P.5 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained two grievous injuries and three simple injuries. The Petitioner was in the Hospital as an inpatient from 26.04.2015 to 04.05.2015, i.e., for 9 days. Due to the said injuries, the Petitioner could have 20 M.V.C.NO.3556/2015 (SCCH-7) definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 60,000/- towards pain and suffering.
33. As it is already observed that, the age of the Petitioner was 38 years. He has to lead remaining his entire life with 20% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
34. The Petitioner had sustained two grievous injuries and three simple injuries and he was in the Hospital as inpatient for 9 days and he could not do any work at least for 4 months and thereby, he deprived the income. Therefore, at the rate of Rupees 10,000/- per month, a sum of Rupees 40,000/- is awarded towards loss of income during the laid up period.
35. The P.W.1 has stated that, he has spent about Rupees 2,00,000/- towards hospitalization and he has only Medical Bills, which is amounting of Rupees 71,490/- and remaining bills are misplaced. In this regard, the Petitioner has produced Ex.P.9 Inpatient Bills, which is amounting of Rupees 55,313/-, Ex.P.11 Medical Bills 28 in numbers, which is amounting of Rupees 71,490/- and Ex.P.12 Medical Prescriptions 14 in numbers. The P.W.1 in his cross-examination has stated that, he has BPL card and since Kunigal Government Hospital Doctors had not given treatment to him, no free facility of treatment is given to him. From the said evidence of P.W.1, it appears that, the Petitioner has not taken any benefits in respect 21 M.V.C.NO.3556/2015 (SCCH-7) of the medical expenses incurred by him to take treatment to the said accidental injuries. The Petitioner has taken treatment at Sparsh Hospital, wherein, he was taken treatment as an inpatient from 26.04.2015 to 04.05.2015, i.e., for 9 days. Considering the nature of the injuries and line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 1,26,803/- (Rupees 55,313/- + Rupees 71,490/-) to the Petitioner.
36. The P.W.1 has stated that, the doctors have advised him to undergo one more surgery for removal of implants, which will cost approximately Rupees 65,000/-. The P.W.2 has stated that, the Petitioner needs another two operation for removal of implants, and he needs Rupees 50,000/- to future expenses. It is clearly mentioned in Ex.P.10 Discharge Summary about CRIF with IM nailing on 27.04.2015, which disclosed about the insertion of implants in situ. The said implants have to be removed and therefore, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.2 produced the estimation for removal of implants. The same has been clearly admitted by the P.W.2 in his cross-examination. However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 20,000/- to the Petitioner.
37. As the Petitioner was taken treatment as an inpatient for 9 days, it is necessary to award a sum of Rupees 3,000/- towards conveyance charges, Rupees 3,000/- towards attendant 22 M.V.C.NO.3556/2015 (SCCH-7) charges and Rupees 5,000/- towards food, nourishment and diet charges etc.,
38. 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 20% Rs. 3,60,000-00 Disability
2. Pain and sufferings Rs. 60,000-00
3. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
4. Rs. 40,000-00 up period
5. Actual medical expenses Rs. 1,26,803-00
6. Future medical expenses Rs. 20,000-00
7. Conveyance Rs. 3,000-00
8. Attendant Charges Rs. 3,000-00 Food, Nourishment &
9. Rs. 5,000-00 Diet charges TOTAL Rs. 6,37,803-00
39. In all, the Petitioner is entitled for total compensation of Rupees 6,37,803/- along with interest at the rate of 9% per annum on the above said sum (excluding future medical expenses of Rupees 20,000/-) from the date of petition till payment.
40. The P.W.1 has stated that, the Respondents are liable to pay compensation to him.
41. While answering Issue No.1, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the rider of the offending Motor Cycle bearing Registration No.KA-02-HS-2256 in the commission of the said road traffic 23 M.V.C.NO.3556/2015 (SCCH-7) accident and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and the said offending Motor Cycle bearing Registration No.KA-02-HS-2256 as well as its rider are very much involved in the said road traffic accident, wherein, the Petitioner had sustained two grievous injuries and three simple injuries. The Petitioner in the cause title of the petition has mentioned that, the Respondent No.1 is a R.C. Owner and the Respondent No.2 is an Insurer of the offending Motor Cycle bearing Registration No.KA-02-HS-2256 and its Policy number 071483/31/14/01/00002791, valid from 10.10.2014 to 09.10.2015. The Respondent No.2 in its written statement has clearly denied the policy issued in respect of the vehicle Motor Cycle (Discover 125 Dream) bearing Registration No.KA-02-HS-2256 in Policy No.071483/31/14/01/00002791 and the same was valid from 10.10.2014 to 09.10.2015. But, the Respondent No.2 has not proved the same by adducing acceptable material evidence. But, the Learned Counsel appearing for the Respondent No.2 has produced the true copy of Insurance Policy relating to the offending Motor Cycle bearing Registration No.KA-02-HS-2256, which clearly disclosed that, at the time of accident, the insurance policy of the offending Motor Cycle was valid, which covers the date of accident. From this, it is made crystal clear that, at the time of accident, the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an Insurer of the offending Motor Cycle bearing Registration No.KA-02-HS-2256 and its Insurance Policy was valid, which covers the date of accident. To deny or discard the same, nothing is available on record on behalf of the Respondent No.1, as, though the notice was duly served to him through RPAD, he was remained absent and hence, he is placed as exparte. There is no allegation leveled as against the rider of the offending Motor 24 M.V.C.NO.3556/2015 (SCCH-7) Cycle in Ex.P.7 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to ride such class of offending Motor Cycle. The violation of the terms and conditions of the Insurance Policy by the Respondent No.1 is not proved by the Respondent No.2. Under such circumstances, the Respondent No.1 being the R.C. Owner and the Respondent No.2 being the Insurer of the offending Motor Cycle bearing Registration No.KA-02-HS-2256, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since the Respondent No.2 is an insurer, it shall indemnify the Respondent No.1. Hence, Issue No.2 is answered accordingly.
42. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 6,37,803/-
with interest at the rate of 9% p.a. (excluding future medical expenses of Rupees 20,000/-) from the date of the petition till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and 25 M.V.C.NO.3556/2015 (SCCH-7) 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 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 26th day of August, 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 : Sri. Kusumakara. R.M.
P.W.2 : Dr. Gunnaiah. K.G.
26 M.V.C.NO.3556/2015
(SCCH-7)
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 Spot Panchanama
Ex.P.4 : True copy of Vehicle Seizure Panchanama
Ex.P.5 : True copy of Wound Certificate
Ex.P.6 : True copy of MVI Report
Ex.P.7 : True copy of Charge Sheet
Ex.P.8 : Notarized Xerox copy of Aadhaar
Card relating to Kusumakar. R.M.
Ex.P.9 : Inpatient Bill
Ex.P.10 : Discharge Summary
Ex.P.11 : Medical Bills (28 in nos.)
Ex.P.12 : Medical Prescriptions (14 in nos.)
Ex.P.13 : OPD Slip
Ex.P.14 : Disability Evaluation Form
Ex.P.15 : Case Sheet
Ex.P.16 : X-ray films (4 in nos., out of which, 3 old
and one new X-ray Films)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.