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2020 DIGILAW 1305 (KAR)

Sunil v. Vajamuddin Sahabuddin Hawaldar

2020-07-02

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - The claimant, in this appeal, has challenged the judgment and award dated 18.03.2015 passed in MVC No.565/2013 by the Presiding Officer, Fast Track Court III, Belagavi (hereinafter referred to as "the Tribunal" for short) whereby the claim petition filed by the claimant was dismissed. 2. The necessary facts for disposal of the appeal are as under: A claim petition came to be filed by the claimant under Section 166 of the Motor Vehicles Act, claiming compensation to the tune of Rs.25,00,000/- for the injuries sustained by him in a road traffic accident that occurred on 11.06.2011 at about 9.00 a.m. It is contended that on the said day, when the claimant was proceeding on service road abutting to National Highway, near Telco company at Garag cross, the driver of the car bearing No.KA-23/M-5978 drove the car in a rash and negligent manner with high speed and lost control over the car and dashed against the claimant due to which the claimant suffered grievous injuries. Soon after the accident, the claimant was shifted to Yash Hospital, Belagavi and took treatment there. It is his case that surgeries were also conducted and thereafter he was taken treatment in Krupalani Orthopedic Hospital, Kolhapur, wherein he was inpatient and spent more than Rs.6,00,000/- towards treatment. It is further contended that he was earning Rs.400/- per day as a skilled labourer as painter and due to the injuries sustained by him in the accident, now he is unable to earn as before and therefore, sought for compensation. On issuance of notice, respondent No.2 appeared before the Tribunal through counsel and resisted the claim by filing written statement wherein the entire averments made in the claim petition were denied. Respondent No.3/insurance company also appeared before the Tribunal and resisted the claim by filing a separate written statement denying the claim petition averments. The insurance company has denied the rash and negligent driving of the car by its driver and highlighted four days delay in lodging the complaint. The insurance company also contended that there is no involvement of the car bearing No. No.KA-23/M-5978 in the accident and the claimant in collusion with the owner of the car, filed a false claim against. The insurance company has denied the rash and negligent driving of the car by its driver and highlighted four days delay in lodging the complaint. The insurance company also contended that there is no involvement of the car bearing No. No.KA-23/M-5978 in the accident and the claimant in collusion with the owner of the car, filed a false claim against. It is also contended that the driver of the car did not possess a valid driving licence to drive the car and therefore, sought for dismissal of the claim petition. Based on the rival contentions, the Tribunal framed the following issues; 1. Whether the petitioner proves that he has sustained bodily injuries due to accident that occurred on 11-06-2011 at about 9.00 a.m. near Telco company on service road besides four lane P.B. road near Garag Cross, due to rash and negligent driving of the driver of the car bearing No.KA-23/M- 5978 as alleged in the petition? 2. Whether the petitioner is entitled for compensation, if so, to what amount and from whom? In order to prove the above issues, the claimant got himself examined as P.W.1 and the doctor who issued disability certificate as P.W.2 and he relied on the documentary evidence, which were marked vide Exs.P.1 to P.22 on his behalf. On behalf of respondents, there was no oral evidence adduced, but the insurance policy was marked at Ex.R.1. After hearing the parties and considering the entire evidence on record, the Tribunal answered Issue No.1 in the negative and dismissed the claim petition. It is that judgment, which is under challenge in this appeal by the claimant. 3. The learned counsel for the appellant/claimant submits that the Tribunal has miscarried itself as to the trivial discrepancy found in the oral evidence of P.W.1 and has disbelieved the case of the claimant. He further submits that the fact of accident being not in dispute, the Tribunal ought not to have dismissed the claim petition. It is contended that mere four days delay in lodging of the complaint would not falsify the case of the claimant. He also points out that the Tribunal has taken too pedantic view of the matter and therefore, sought for interference by this Court. It is contended that mere four days delay in lodging of the complaint would not falsify the case of the claimant. He also points out that the Tribunal has taken too pedantic view of the matter and therefore, sought for interference by this Court. It is also his contention that the Tribunal ought not to have attached too much importance on technicalities in a matter of this nature, as strict rules of evidence are not applicable before the motor accident claims tribunal and sought for allowing the appeal. 4. Per contra, the learned counsel appearing for the insurance company has vehemently submitted that the discrepancy found in the cross-examination of P.W.1 clearly shows that the entire case, as is made out, itself was wrong; A false claim came to be laid against the owner of the car bearing No. No.KA-23/M-5978, which has been rightly appreciated by the Tribunal while dismissing the claim petition and thus, sought for dismissal of the appeal. It is the argument of the learned counsel for the insurance company that the delay of four days is significant delay and the explanation offered by the claimant in this regard is not believable explanation and thus, sought for dismissal of the appeal. 5. In view of the rival contentions of the parties, the points that would arise for our consideration are as under; i) Whether the appellant makes out a case that he sustained bodily injuries on account of accident occurred on 11.06.2011 at about 9.00 a.m. near Telco company on service road besides four lane P.B. road near Garag Cross, due to rash and negligent driving of the car bearing No. No.KA-23/M-5978 by its driver? ii) Whether the appellant/claimant is entitled for compensation? If so, to what extent? 6. We answer Point No.1 and 2 in the affirmative for the following: REASONS 7. In order to establish that the claimant sustained injuries on account of accident occurred on 11.06.2011 at about 9.00 a.m. near Telco company on service road besides four lane P.B. road near Garag Cross, on record, we have the oral evidence of P.W.1, who is none other than the injured/claimant. 8. He has filed an affidavit in lieu of his examination-in-chief. 8. He has filed an affidavit in lieu of his examination-in-chief. In the said affidavit, he has reiterated the contents of the claim petition and has substantially stated that on 11.06.2011 at about 9.00 a.m., near Telco company on service road, besides four lane P.B. road, near Garag Cross, when he was going on a service road by walk, the driver of the car bearing No.KA- 23/M-5978 came in a rash and negligent manner, lost control over the car and dashed against the claimant resulting in the claimant sustaining grievous fracture injuries. 9. In the cross-examination, he answered that on the date of the accident, he had come in a bus from Belagavi and after getting down near bus stop situated at High Court of Karnataka, Dharwad Bench, he was proceeding by walk to reach Telco company. He answered that he could not reach Telco company as the accident took place before he could reach Telco company. He has specifically answered that he could not lodge the compliant immediately after the accident as he was admitted in ICU. He denied the suggestion that he colluded with the driver of the car bearing No.KA-23/M- 5978 and lodged a false case against him. 10. Now on the question of documentary evidence, we have Ex.P.1, which is the complaint lodged by the claimant. In the complaint, it is mentioned that on 11.06.2011 after finishing work at Telco Company he was moving on the road to reach Belagavi. In Ex.P.2, while assigning the reasons for delay, it has been specifically mentioned that Garag police reached Yash Hospital at Belagavi on receipt of MLC through wireless. 11. In wound certificate marked at Ex.P.7 and discharge summary marked at Ex.P.9 it is specifically mentioned that the claimant sustained injuries in a road traffic accident. The police, after investigation, have filed charge-sheet against the driver of the car bearing No.KA- 23/M-5978, which is marked at Ex.P.8. 12. On cumulative consideration of oral and documentary evidence on record, mere discrepancy in answering the question as to whether he sustained injuries after visiting Telco Company or before visiting Telco Company would not be sufficient enough to disbelieve the whole case of the claimant that he did not sustain injury in a road traffic accident. 13. On record, there is nothing available to show that there was collusion between the owner/driver of the car bearing No.KA-23/M-5978 and the claimant. 13. On record, there is nothing available to show that there was collusion between the owner/driver of the car bearing No.KA-23/M-5978 and the claimant. The explanation of delay in lodging the complaint can be found from Ex.P.2/FIR, wherein there is specific mention that the police visited Yash Hospital, Belagavi after receiving MLC report through wireless. 14. Mere delay in lodging the FIR would not ipso facto result in disbelieving the entire case of the complainant in every case. The person who takes plea of delay must necessarily explain to the Court that the time lapsed i.e., time from incident till lodging of the FIR must have been utilized for the purpose of concocting a false case. Further, in the background of such principle, there is no contra evidence placed on record by the respondent. The driver of the car bearing No.KA-23/M-5978 would have been the best witness to explain as to what exactly happened on the date of the accident. The insurance company did not choose to investigate the matter through private investigator attached to the insurance company and place the same before the Court. Mere say of the insurance company that there was collusion between the driver of the car and the claimant would not take the seat of proof. 15. Therefore, after re-appreciation of the entire material on record, we are convinced that there is sufficient material, which would connect the injuries sustained by the claimant and the accident occurred on 11.06.2011 at about 9.00 a.m. near Telco company on service road besides four lane P.B. road near Garag Cross, on account of rash and negligent driving of the car bearing No. No.KA-23/M-5978 by its driver. The minor discrepancy, if any, in the oral evidence would not ipso facto falsify the case of the claimant. 16. From the above discussion, we are of the considered opinion that the claimant has proved the injuries sustained by him are the injuries sustained by him on account of accident that was occurred on 11.06.2011 at about 9.00 a.m. near Telco company on service road besides four lane P.B. road near Garag Cross on account of rash and negligent driving of the car bearing No. No.KA-23/M-5978 by its driver. Hence, we answer Point No.(i) in the affirmative. 17. This takes us to the next question that what would be the compensation the claimant is entitled for. 18. Hence, we answer Point No.(i) in the affirmative. 17. This takes us to the next question that what would be the compensation the claimant is entitled for. 18. Admittedly, in Ex.P.1/complaint, the age of the claimant is shown as 26 years and in Ex.P.9/discharge summary it is shown as 28 years. The multiplier applicable for the age group 26 to 30 years is 17' and we also deem it to apply the same. 19. As per Ex.P.19/disability certificate, on account of the accident, the claimant suffered comminuted fracture of right femur, comminuted segmental fracture of right tibia and fracture terminal phalanx of fifth finger foot and there is muscle wasting of right thigh and shortening of right lower limb. The claimant got treated for the above injuries at Yash Hospital, Belagavi and Krupalani Orthopedic Hospital, Kolhapur. The disability certificate issued by P.W.2 shows that he suffered disability to the extent of 55% but P.W.2 is not the doctor, who treated the claimant. Whenever, the treating doctor is not the person who assessed the disability, it is consistent practice of the Courts to assess 1/3rd of the disability shown in the disability certificate. Hence, we consider the disability at 18% to the whole body to assess the compensation towards loss of future income. 20. The avocation of the claimant as is shown in the complaint and other documents is that he was a painter. There is no material available on record to show that the claimant was earning Rs.400/- per day. Under such circumstances, the income needs to be assessed notionally. This Court and the Lok-Adalaths, wherever there is no formal proof available to prove the income, have assessed the income at Rs.6,000/- per month notionally, for accidental claims of the year 2011. Accordingly, the claimant would be entitled to Rs.2,20,320/- (Rs.6000 x 12 x 17 x 18% = 2,20,320/-) towards loss of future income. 21. Though it is contended in the claim petition that the claimant has spent more than Rs.6,00,000/- towards medical expenses, but there is no proper proof to prove the same. The available medical bills would work out to Rs.3,50,000/- and accordingly we deem it to grant Rs.3,50,000/- towards medical expenses. 22. 21. Though it is contended in the claim petition that the claimant has spent more than Rs.6,00,000/- towards medical expenses, but there is no proper proof to prove the same. The available medical bills would work out to Rs.3,50,000/- and accordingly we deem it to grant Rs.3,50,000/- towards medical expenses. 22. Taking into account the injuries sustained by the claimant, as could be seen from disability certificate/Ex.P.19, we deem it proper to award a sum of Rs.50,000/- towards pain and sufferings and a sum of Rs.40,000/- towards loss of amenities in life. 23. Further, on account of the injuries sustained by the claimant, he could have incurred some expenses towards food, nourishment and attendant charges and therefore, we deem it just to award a sum of Rs.25,000/- towards food, nourishment and attendant charges. 24. Taking into consideration the nature of injuries sustained by the claimant, he might have taken treatment and rest for a period of four months and might have lost his income during the said period. Accordingly, we deem it just to award a sum of Rs.24,000/- (Rs.6000 x 4 = Rs.24,000/-) towards loss of income during the laid up period. Accordingly, the claimant would be entitled to the compensation of Rs. 7,09,320/- on following heads. 1. Loss of dependency including future prospects Rs.2,20,320/- 2. Towards medical expenses Rs.3,50,000/- 3. Towards pain and sufferings Rs.50,000/- 4. Towards loss of amenities in life Rs.40,000/- 5. Towards food, nourishment and attendant charges Rs.25,000/- 6. Loss of income during laid up period Rs.24,000/- Total Rs.7,09,320/- 25. In view of the above discussions, we answer Point No. (ii) in the affirmative and proceed to pass the following: ORDER The appeal is allowed in part. The judgment and award dated 18.03.2015 passed in MVC No.565/2013 by the Presiding Officer, Fast Track Court III, Belagavi is hereby set aside. The claimant is entitled to a total compensation of Rs.7,09,320/- with interest at the rate of 6% per annum from the date of petition till realization. The respondent/insurance company is directed to deposit the entire compensation amount with interest within a period of six weeks from the date of receipt of certified copy of this order. Draw the modified award accordingly.