Bangalore District CourtSri Praveen Kumar.G vs Naresh Kumar Agarwal on 2 April, 2018BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL & V
   ADDL. JUDGE SCCH-20, Mayo Hall Unit, Bengaluru.

          Dated this the 2nd day of April, 2018
        Present:    Smt. A.G.SHILPA, B.A., LL.B.,
                    V Addl. Small Causes Judge &
                    XXIV A.C.M.M., Member, M.A.C.T.,
                    Bengaluru.

                 MVC. No.2242/2016

PETITIONER:         Sri Praveen Kumar.G.
                    S/o of Gunashekar.V.,
                    Aged 19 years,
                    No.81, Near Nagaragiri
                    Township, Doddagubbi Road,
                    Bileshivale
                    Bangalore - 560077.

                  (By Pleader Sri.Muniyappa.D.Naveen,Adv.)
               -V/s-

RESPONDENTS:        1.Naresh Kumar Agarwal
                    Prop: Meenakshi Cement and Building
                    Material Suppliers,
                    No.10/02, Hennur Bands,
                    Hennur Main Road, Kalyannagar
                    Bangalore - 560043.

                    2. National Insurance Co.ltd
                    No.144, Shubharam Complex,
                    2nd Floor, M.G.Road,
                    Bangalore - 560001.


                       (R1 - Exparte,
                       R2 - V.Subramani, Adv.,)
 SCCH-20                          2                    MVC No.2242/2016




                        JUDGMENTThe Petitioner has filed this petition U/sec.166 of
M.V.Act, 1989 claiming compensation for the injuries sustained
by his in a road traffic accident.2.    The brief facts of the Petitioner case are as
follows:It is the case of the petitioner that on 28/01/2016 at
about 14.30 PM, the petitioner was riding his motor cycle
slowly, cautiously by observing all the traffic rules on
Geddalahalli outer ring road, at that time one Eicher Lorry
bearing Reg.No: KA-03-C-1040 which was proceeding in front
of   the   petitioner   motor   cycle   as   they   reached   near
Vijayalakshmi Medical Store, Hennur Bande, Hennur Main
Road, without any indicators or signals suddenly the driver of
the Eicher Lorry took reverse, as a result of the forced impact,
the petitioner fell down and sustained grievous injuries on vital
parts of the body.Immediately after the accident the petitioner was taken to
Manipal Hospital, wherein the duty doctors examined and the
injuries confirmed as per the wound certificate and discharge
summary and got admitted as inpatient, thereafter necessarySCCH-20                         3                    MVC No.2242/2016treatment was offers and discharged with an advise to take
complete bed rest, continue medicines and to take follow up
treatment.     So far the petitioner had spent more than
Rs.75,000/-.Inspite of better treatment, the petitioner is suffering from
severe pain, unable to sit, stand, squat, walk, run jump, climb
stairs, unable to breath, sleep properly, unable to do any work,
unable to bear any weight and unable to hold objects, unable to
concentrate on his studies, unable to attend the classes
regularly hence lost his academic year as the petitioner is
suffering from mental agony, hardship, financial difficulties.The Banaswadi Traffic Police have registered a case
against the driver of the Lorry in Cr. No: 0004/2016 U/sec.,
279,337of IPC.In pursuance of the claim petition, this court issued
notice to respondent No.1 and 2. The respondent No.1 is placed
exparte. The respondent No.2 has appeared through pleader
and filed written statement.3.   Brief   averments of      the   written statement      of
Respondent No.2 is as follows:SCCH-20                         4                    MVC No.2242/2016The 2nd respondent admitted for having issued policy
bearing     No.606002311510000224      in   favour   of   the   1st
respondent insuring the driver of Eicher Truck KA-03-C-1040
for the period 18/5/2015 to 17/5/2016. The respondent has
denied all other averments made in the petition. It is stated that
in the event that an award is passed against the respondent
their liability to indemnify their insured is subjected to the
terms and conditions of the policy and under the provision ofMotor Vehicles Act. It is defence that the liability to indemnify
the insured subject to holding valid and effective driving license
by the rider. Further it is admitted that the petitioner is
required to declare that he did not file any other petitions claim
for compensation on the same cause of action before any other
tribunal, in case of such petitions are pending, he ought to give
an undertaking that she shall withdraw all other cases claiming
for the same relief. Further submitted that in the event of this
court has inclined to allow the above petition and award interest
may be restricted to 4% pa., Therefore, the 2nd respondent in
the above case prayed to dismiss claim petition.4. On basis of the Pleadings and materials and
materials, my Predecessor has framed the following:ISSUES1.    Whether the petitioner proves that on
             28/01/2016 at about 14:30 pm, when the
             petitioner was riding his motor cycle bearingSCCH-20                          5                    MVC No.2242/2016Reg.No: KA-53-EL-4221, on Geddalahalli,
            Outer ring Road, at that time one Eicher Lorry
            bearing Reg.No: KA-03-C-1040, proceeding on
            in front of the petitioner's motor cycle, as they
            reached near Vijayalakshmi Medical Store,
            Hennur Bande, Hennur Main road, without
            giving any signals suddenly the driver of the
            Eicher lorry took reverse. As a result of forced
            imact, the petitioner was fell down and
            sustained grievous injuries on vital parts of
            the body?2.   Whether the petitioner is entitled for
            compensation? If so, to what amount and
            from whom?3.   What order or award?5.     In order to prove their case, the Petitioner got
examined himself as P.W.1 and examined doctor as PW-2 and
got marked documents as Ex.P.1 to Ex.P.17 and closed his side.
The Respondents not adduced any evidence on their behalf.6.     Heard the arguments of both side and perused the
records.7.     My findings on the above issues are as follows:Issue No.1 :   Partly in the Affirmative,
                 Issue No.2 :   Partly in the Affirmative
                 Issue No.3 :   As per final order
                                for the following:REASONS8.     ISSUE No.1: The PW-1 has filed evidence affidavit
reiterating the petition averments and narrated, about roadSCCH-20                            6                     MVC No.2242/2016traffic accident occurred on 28/01/2016 at 2.30 PM at
Geddalahalli outer Ring Road.          It is the case of PW1 that on
alleged date, time and place, he was riding a motor cycle
bearing Reg.No: KA-53-EL-4221 and one Eicher Lorry driver
bearing Regn.No: KA-03-C-1040 was going in front in a rash
and negligent manner and without putting indicator or signal
suddenly took a reverse and hit the motor cycle due to which
PW1 suffered grievous injuries.9. The PW1 has produced FIR Ex.P.1 vide crime No:0004/2016 against the driver of the Eicher Lorry bearing
Reg.No: KA-03-C-1040 for committing an offence punishable
u/sec., 279,337of IPC, on basis of the First Information
Statement of PW1 himself. The statement is on the next date of
the accident since PW1 though conscious oriented he was
hospitalized & suffering from pain. However, it is settled law
that evidence in motor vehicle cases must be assessed
independently from criminal proceedings. Therefore, prudence
requires corroboration.10. The Ex.P.3 is the Panchaname and Ex.P.4 spot
mahazar clearly corrborates place of accident.          Further the
motor     vehicle   accident   report    Ex.P.5   corroborates   good
mechanical conditional of the vehicle. The Ex.P.6 goes to show
the wound sustained by the PW1 is injury to the Mount Foot
and displaced, 2, 3 MT Neck Fracture open Type-2, LaceratedSCCH-20                        7                    MVC No.2242/2016wound over the dorsum of right foot and other injuries. The
said injuries are grievous in nature.          After completing
investigation the Investigation Officer has charge sheeted Mr.
Dharmabeer Singh @ Dharambeer Singh, driver of the Eicher
Lorry bearing Regn.No: KA-03-C-1040 for committing an
offence punishable u/sec., 279&338of IPC.11. Material evidence is elicited of PW1 to hold driver rash
and negligent. The PW1 has clearly denied that he was riding
on the center of the road rash or negligently.        From the
evidence it is seen that the PW1 was on left side. Though, it is
a big road and driver of the Eicher Lorry could have avoided
accident taking aside the motor cycle or stopped by giving
proper indication, but without following proper indication the
driver of the Eicher Lorry dashed and caused accident.       The
break system of the Eicher Lorry was in order. The accident
occurred was not due to any mechanical condition of the Eicher
Canter. Thereby the driver of the Eicher Canter did not have
sufficient cause to cause accident to PW1. The oral evidence
coupled with documentary evidence clearly indicate an act of
rash and negligence on part of PW1.        There is no cogent
evidence to show that Eicher Canter, is not involved in the
accident.   They insist on producing Ex.R.1 but it is not
explained by the 2nd Respondent. In view of it, I answer Issue
No: 1 in the partly in the AFFIRMATIVE.SCCH-20                         8                    MVC No.2242/201612. Issue No.2: The Ex.P.8 is the Discharge summary
and the doctor has diagnosed Fracture of neck of the 2nd
Metatarsal with k wire fixation of Tarsal bones.       After the
course of treatment in the hospital, the PW1 improved and he
was discharged on the next day i.e., 29/01/2016.         He was
advised to follow up the prescribed medication and follow up
treatment. The said fracture must have caused stress and
discomfort on the petitioner in pursuing his daily activities. He
must have suffered intense pain.     Therefore, the petitioner is
given compensation of Rs.75,000/- for Pain & Sufferings. The
petitioner has produced Ex.P.9 Medical bills of Rs.58,088/- and
are found genuine.    The PW1 has summoned medical record
officer of Manipal Hospital to produce in patient record and out
patient record Ex.P.16, Ex.P.17 respectively.    It corroborates
type of fracture and nature of treatment given to the petitioner.
Further, the doctor is not examined in this case. In view of it,
the fracture must be healed and there is no after disability.13. The PW1 on the date of accident was studying 4th
semester in Chemistry, Botany, Zoology & B.Sc. He has total
6th Semester and on date of accident he was in his 6th
Semester. 4th & 6th Semester was usually conducted in April.
He could not completed his 4th Semester exam in April 2016
due to accident.   He completed by rejoining the college last
year. He was inpatient for 2-3 days. In view of the difficulties
and inconvenience caused to PW1 by road traffic accident he isSCCH-20                              9                     MVC No.2242/2016entitled for the loss of amenities of Rs.50,000/- Further under
conventional heads of attendants charges and transportation,
the petitioner is granted Rs.10,000/- each.14. Under the above facts and circumstances of the
case, I am of the opinion that the petitioner is entitled for
compensation under the following heads:1.        Pain and sufferings             Rs. 75,000/-2         Medical expenses                Rs. 58,088/-3         Towards      Attendant      &   Rs. 20,000/-Transportation charges
        4         Loss of amenities              Rs. 50,000/-Total Rs.2,03,088/-In all the petitioners are entitled for compensation of
Rs.2,03,088/- which can be rounded to Rs.2,04,000/-15. Interest:Hon'ble Supreme Court in Civil Appeal No.3238/2015
(arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs.
Jaspalsingh & Ors.,) and 2013 AIR SCW 5375 (Minu Rout &
Ors     vs Sathya Pradyumna Mohapatra & Ors), (2011) 4 SCC
481: (AIR 2012 SC 100) (Muncipal council ofDelhi Vs
Association of Victims of Uphaar Tragidyand            Hon'ble High
Court        in     MFA    No.2326/2016       (Annapurna     &    Ors.,
G.Ashawathraya & Anr.,) have held that rate of interest shall beSCCH-20                          10                    MVC No.2242/2016@9% p.a., from the date of application till the date of payment.
Hence, I hold that the petitioner is entitled for interest @9%
p.a., from the date of petition till the date of payment. In view of
settled rate of interest, 9% is justified and not on higher side.
Accordingly the petitioner is entitled to interest @ 9% pa.,


      Liability16. The 2nd Respondent did not prove that the driver of
Eicher Lorry bearing Reg.No: KA-03-C-1040 was not having
DRIVING LICENSE. The driver is not examined in this case to
explain what exactly happed at place of accident ? The 1st
Respondent did not contest the case.        Therefore, an adverse
inference can be drawn against them.          Further, there is no
proper evidence for the breach of terms and conditions of the
policy. The defence taken in the written statement of the 2nd
Respondent is not proved. Therefore, primary liability is upon
the 2nd Respondent to pay compensation to the petitioner. In
view of it, I answer Issue No.2 in the partly Affirmative.17.   Issue No.3: After having answered issue No.1 & 2
as supra I hold that, the petition filed by the petitioners is fit to
be allowed in Part, in the result, I proceed to pass the following:-SCCH-20                          11                          MVC No.2242/2016ORDER

            The claim petition filed underSection 166of
      the Motor Vehicles Act is allowed in part with cost
      as hereunder.The petitioner is entitled for compensation of
      Rs.2,04,000/- with interest @ 9% pa., from the
      date of petition till its realization.The    respondent         No.2     shall   pay     the
      compensation together with 9% interest within a
      month from the date of this order.After deposit, 60% of compensation amount
      with interest shall be released in favour of the
      petitioner with proper identification and remaining
      40% of compensation amount shall be deposited
      in FD in any nationalized bank of his choice for a
      period of 3 years.Advocate fee is fixed at Rs.1,000/-.Draw award accordingly.(Dictated to the Stenographer, transcribed by him,
corrected by me and then pronounced in open court on this the
2nd day of April 2018)


                                 (A.G.SHILPA,)
                            V ASCJ & Member, MACT,
                              Court of Small Causes,
                            Mayo Hall Unit, Bengaluru.SCCH-20                      12                MVC No.2242/2016A N N E X U R E:Witnesses examined for petitioners:P.W.1     :    Praveen Kumar.G.
P.W.2     :    Padma.T
Documents marked for petitioners:

Ex.P.1    True copy of FIR
Ex.P.2    True copy of complaint
Ex.P.3    True copy of Spot Mahazar
Ex.P.4    True copy of Spot Sketch
Ex.P.5    True copy of IMV Report
Ex.P.6    True copy of Wound Certificate
Ex.P.7    True copy of Charge Sheet
Ex.P.8    Discharge summary
Ex.P.9    Medical bills
Ex.P.10   Photos & CD
Ex.P.11   Letter written to college
Ex.P.12   Medical Certificate
Ex.P.13   College Certificate
Ex.P.14   Certificate
Ex.P.15   Authorization letter
Ex.P.16   Inpatient record
Ex.P.17   Out patient recordWitnesses examined for respondents: NIL

Documents marked for respondents: NIL



                            (A.G.SHILPA,)
                       V ASCJ & Member, MACT,
                         Court of Small Causes,
                      Mayo Hall Unit, Bengaluru.