Bangalore District CourtShri.Nanjegowda vs ) Srinivas.H.N on 23 February, 2023KABC020105532020\n\n\n\n\nIN THE COURT OF III ADDL.JUDGE AND MOTOR\nACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL\n       CAUSES, BENGALURU (SCCH­18)\n\n   Dated: This the 23rd day of February 2023\n\n\n            Present:    V.NAGAMANI\n                        B.A.L., LL.B., LL.M.,\n                        III ADDL. JUDGE &\n                        MEMBER, MACT\n                        COURT OF SMALL CAUSES,\n                        BENGALURU.\n\n                M.V.C.No.1958/2020\n   Petitioner          Shri.Nanjegowda,\n                       S/o.Siddalingegowda,\n                       Aged about 60 years,\n                       Chinenahalli Village,\n                       Madapura Post,\n                       Kikeri Hobli, K.R.Pet Taluk,\n                       Mandya District,\n\n                       (By Pleader Shri.C.C.Harish)\n   `                   V/s\n\n   Respondents         1) Srinivas.H.N,\n                       S/o.Nagarajum,\n                       Age : Major,\n                       Nagasamudra Road,\n                       Vivekananda Nagar,\n   2                 SCCH-18             MVC 1958/2020\n\n\n\n                        Channarayapattna Town,\n                        Hassan District.\n\n                        (RC Owner of Motor cycle bearing\n                        Reg.No. KA­41­EC­2821)\n\n                        (By pleader Shri. Nanda\n                        Kumar.H.J.)\n\n                        2) Reliance General Insurance\n                        Co. Ltd.,\n                        Regional office, 5th Floor,\n                        Centunauary building,\n                        M.G.Road, Bengaluru­1.\n\n                        (Policy No.607321923480492690,\n                        valid from 10.12.2019 to\n                        9.12.2020)\n\n                        (By Pleader Shri.K.M.Ravi)\n                          ******J U D G M E N T*\n      This judgment is emerged consequent upon the\n\npetition filed by the petitioner U/S 166 ofM.V. Act,\n\nclaiming    compensation      of   Rs.15,00,000/­    on\n\naccount of the injuries sustained by him, in a road\n\ntraffic accident.3                  SCCH-18                    MVC 1958/2020*FACTS OF THE CASE IN NUTSHELL*2. Facts leading to the case of the petitioner\n\nforthcoming in the petition that, on an unfortunate\n\ndate     of    25.2.2020 at about 12:00 p.m., the\n\npetitioner was riding his Motor Cycle bearing\n\nregistration No.KA­11­Q­3257, on HN pura to\n\nC.R.Pattna      road,      near         Bindenahalli       Village,\n\nDandiganahali        Hobli,      Channarayapattna           Taluk,\n\nHassan District. At that time, the rider of the Motor\n\ncycle     bearing    Registration         No.KA­41­EC­2821,\n\ncame from opposite side, in a rash and negligent\n\nmanner with high speed, thereby lost control and\n\ndashed        against        petitioner's       motor           cycle.\n\nConsequently, the petitioner fell down and sustained\n\ngrievous injuries in the said accident.3. It is stated that, immediately, the petitioner\n\nwas        shifted      to        Government             hospital,\n\nChannarayapattna           and    after       taking    first     aid\n\ntreatment,     he    was      shifted    to    Punya     hospital,4                SCCH-18              MVC 1958/2020Channarayapattna,     wherein, he took         inpatient\n\ntreatment from 25.10.2020 to 2.3.2020.           In this\n\nregard,   spent   Rs.1,00,000/­    towards   treatment,\n\nmedicines, nourishment and conveyance charges.4. It is stated that, prior to the accident, the\n\npetitioner was hale and healthy, and he was aged\n\nabout 60 years and was an agriculturist and\n\nearning a sum of Rs.15,000/­ per month.          Due to\n\nthe accident, the petitioner had suffered mental and\n\nphysical as well as financial hardship.5. It is alleged in the petition that, accident was\n\npurely on account of the negligence of the rider of the\n\nMotor cycle bearing Registration No.KA­41­EC­\n\n2821. In this regard, case was registered against the\n\ndriver by the jurisdictional Channarayapattna Rural\n\npolice as per Crime No.29/2020.           As such, the\n\nrespondent No.1 and 2, being the owner and the\n\ninsurer of the offending vehicle, are jointly and\n\nseverally liable to pay compensation to the petitioner.5                SCCH-18              MVC 1958/2020Accordingly, petitioner has filed the instant petition,\n\nclaiming compensation.6.   After service of the notice of this petition,\n\nthough     respondent   No.1   appeared      through   his\n\ncounsel,    not filed written statement, in answer to\n\nthe case of the petitioner. On the other hand, the\n\nrespondent No.2, had appeared before the Court\n\nthrough counsel and filed written statement, in\n\nanswer to the case of the petitioner.7.   The   respondent    No.2,    in   the   written\n\nstatement has not seriously disputed the accident\n\nand the injuries sustained by the petitioner.          But,\n\nstrongly denied the allegation of actionable negligence\n\non the part of the rider of the offending vehicle. At\n\nthe same time, not denied about the existence of\n\npolicy, as on the date of the accident, issued in\n\nfavour of the respondent No.1, subjected to the terms\n\nand conditions of the policy. Further, contended that,\n\nneither the owner nor the policy complied the6                SCCH-18              MVC 1958/2020mandatory provisions as required undersection\n\n134(c)andsection 158(6)of the Motor Vehicles Act in\n\nfurnishing the better particulars.    It is stated that,\n\nthe driver of the offending vehicle was not holding\n\nvalid DL, as on the date of the accident, thereby the\n\nowner of the vehicle violated the terms and conditions\n\nof the policy. In this regard, jurisdictional police have\n\nfiled chargesheet against the rider of the offending\n\nmotor cycle for the offences punishable undersec.\n\n3(1)and181of Motor Vehicles Act.        As such the\n\nrespondent is not liable to pay any compensation.      It\n\nis specifically contended that, the alleged accident\n\nwas occurred, solely due to the negligence on the part\n\nof the petitioner, and he was not wearing the helmet.\n\nAnd the compensation claimed by the petitioner is\n\nhighly excessive and exorbitant. With all these main\n\ngrounds, prayed to dismiss the petition against their\n\ncompany.7                SCCH-18             MVC 1958/20208. On the basis of the rival pleadings of both\n\nthe parties, for final determination of the case,\n\nframed the following:*ISSUES*1.   Whether the petitioner proves that,\n       he had sustained grievous injuries in\n       motor vehicles accident, that was taken\n       place on 25.2.2020 at about 12.00 p.m.,\n       on HN pura ­ CR Pattna Road, near\n       Bindenahalli     Village,   Dandiganahalli\n       Hobli, Channarayapattna taluk, Hasan,\n       due to the rash and negligent riding of\n       the rider of the motor cycle bearing\n       registration   No.KA­41­EC­2821    in   an\n       actionable negligence ?2. Whether the petitioner is entitled for\n       compensation as prayed for? If so, at\n       what rate? From whom?3. What order or award?9.    In order to substantiate the case of the\n\npetitioner, by name Sri.Manjegowda, during the8               SCCH-18              MVC 1958/2020course of his evidence, placed his affidavit evidence,\n\nin lieu of examination­in­chief, who examined as\n\nPW­1 in the case on hand. At the time of his\n\nevidence, got marked documents as Ex.P1 to Ex.P12\n\nand Ex.P.16. In addition to his evidence witness by\n\nname, Dr.Mahesh.V, was examined as PW­2. At the\n\ntime of his evidence, 3 documentary evidence got\n\nmarked as Ex.P13 to Ex.P15, for consideration.10.    On the other hand, though respondent\n\nNo.1 being owner, though made appearance before\n\nthe   court,    not   adduced    any    evidence   for\n\nconsideration. The respondent No.2, to prove all the\n\ndefenses forthcoming in its written statement, has\n\nexamined its Legal Manager as RW­1. At the time of\n\nhis evidence, he got marked two documents as\n\nEx.R.1 and Ex.R.2. Hence, matter was set down for\n\narguments.11.   Heard the argument of both the counsel.\n\nAnd perused the materials available on record.9                 SCCH-18                MVC 1958/202012.   On appreciation of the evidence available\n\non record, my findings to the aforesaid issues are as\n\nfollows:Issue No.1: In the Affirmative.Issue No.2: Partly in the Affirmative.\n             Issue No.3: As per final order,\n                         For the following:R E A S O N S\n\n      ISSUE NO.1:­13. It is the specific case of the petitioner that,\n\ndue to the actionable negligence on the part of the\n\nrider of the offending vehicle Motor cycle bearing\n\nregistration No.KA­41­EC­2821, alleged accident\n\nhad taken place. Consequently, the petitioner had\n\nsustained grievous injuries.     On the other hand, the\n\nrespondent     company,     denied   the      allegation   of\n\nactionable negligence on the part of the rider of the\n\noffending vehicle, by contending that, due to the\n\nnegligence on the part of the petitioner, accident, and\n\nits consequences were taken place. The owner of the10                 SCCH-18             MVC 1958/2020offending vehicle remained as silent spectator in\n\nconnection with the assertion of the petitioner in the\n\ncase on hand.14. On going through the above issue, burden\n\nis on the petitioner to prove the same, on the touch\n\nstone of preponderance of probabilities. To discharge\n\nthe burden lies on the petitioner­ Manjegowda,\n\nplaced his affidavit evidence, by reiterating the main\n\npetition averments. In support of all the assertions,\n\nin all placed 13 documents. Among them, Ex.P.1 to\n\nEx.P.9 are the material documents in connection\n\nwith the above issue. Remaining documents and the\n\nevidence of PW2, are relevant to be discussed, at the\n\ntime of discussion of the issue No.2.15.   On the other hand, to prove all the\n\ndefenses forthcoming in the written statement of\n\nrespondent   No.2,    placed   the   evidence   of   Legal\n\nManager by name Ibrahim Mujavar as RW­1. At the\n\ntime of his evidence authorization letter, insurance11                  SCCH-18                  MVC 1958/2020policy were marked as Ex.R.1 and Ex.R.2. Except\n\nthese documents,        no other documentary evidence\n\nplaced on record to impeach the recitals of Ex.P.1 to\n\nEx.P.9.      In the affidavit evidence of RW­1 reiterated\n\nall the defenses forthcoming in the written statement.16.    On taking bird's eye view towards the\n\npolice    papers,    relied    on   by   the    petitioner    to\n\ndemonstrate his case, evident that, on the basis of\n\nfirst information given by the petitioner, on the same\n\ndate of accident dated 25.2.2020 criminal law set in\n\nmotion against the rider of the offending vehicle\n\nbearing      registration     No.KA­41­EC­2821,      on      the\n\nallegations forthcoming in the Ex.P.10, criminal law\n\nset in motion by stating that, the rider has committed\n\nthe offences punishable underSec. 279and337of\n\nIPC.     There is no delay in giving first information\n\nabout the accident.            And there is a clear cut\n\nnarration with respect to the actionable negligence\n\ncommitted by the rider of the offending vehicle, on12                SCCH-18              MVC 1958/2020the fateful day of the accident. The said document\n\nremained unquestioned by the respondents. If at all,\n\nthe rider of the offending vehicle was innocent, he\n\ncould have questioned the said documents, well in\n\ntime before the competent court of law to prove his\n\ninnocence.17. Added to this, on going through the recitals\n\nof spot mahazar, spot sketch, report of the Motor\n\nvehicle inspector and wound certificate marked at\n\nEx.P.3 to Ex.P.6 reveal that, after setting the criminal\n\nlaw in motion, against the rider of the offending\n\nvehicle, the investigation officer visited the scene of\n\noccurrence    and    conducted    spot    mahazar    by\n\npreparing spot sketch, in the presence of panch\n\nwitnesses.    The said documents strengthen the case\n\nof the petitioner about the involvement of the\n\noffending vehicle in the accident.   As per the report\n\nof the motor vehicle inspector, accident in question\n\nwas not due to any mechanical defects of the vehicles13                SCCH-18             MVC 1958/2020involved in the accident. And the damages noted in\n\nthe said document have not been seriously disputed\n\nby the respondents.     Further, the wound certificate\n\nplaced on record clearly speaks that, on the history of\n\nRTA,    the petitioner had sustained injuries, which\n\nwere noted in the wound certificate.          All these\n\nmaterial documents remained unshaken.18. Ultimately, on perusal of the final report\n\nsubmitted by the investigation officer, reflects that,\n\nafter due investigation process charge sheet has been\n\nsubmitted against the rider of the offending vehicle by\n\nname Srinivas,      on the allegation that, he had\n\ncommitted the offense punishable underSec. 279and338of IPC andSec. 3andSec.181of the\n\nMotor vehicles Act.           It is evident from the\n\nallegation made in column No.17 that, as on the date\n\nof the accident, due to the actionable negligence on\n\nthe part of the rider of the offending vehicle, accident\n\nin question had taken place. At that time, the rider14                 SCCH-18            MVC 1958/2020had no valid and effective driving license, to ride the\n\noffending vehicle.     The recitals of charge sheet\n\nremained unquestioned by the other side.       Though\n\nthe RW­1 reiterated all the material points, in\n\nconnection with the defenses of the respondent No.2\n\nforthcoming in the written statement, no supportive\n\ndocuments placed on record, to prove the innocence\n\nof the rider of the offending vehicle and to prove all\n\nthe other defenses taken against the petitioner in the\n\ncase in hand.19.   At the time of the   cross­examination of\n\nPW­1, learned counsel for the respondent No.2\n\nthough put several questions, nothing worthwhile is\n\nelicited to disbelieve the actionable negligence on the\n\npart of the rider of the offending vehicle, on the\n\nfateful day of the accident.   And the questions put to\n\nthe witness in para No.2 of the cross­examination\n\nreveals that, the PW­1 has not produced DL along\n\nwith other vehicle documents as admitted in the15                SCCH-18             MVC 1958/2020cross­examination. On the other hand, at the time of\n\ncross­examination of RW­1, answered that, on the\n\nbasis of final report, he is deposing that, the rider\n\nhad no DL and the owner of the offending vehicle\n\nhas not sent any reply to the notice. But not denied\n\nthe suggestion that, final report has been submitted\n\nagainst the rider of the offending vehicle and the\n\nsame has not been questioned by the company and\n\nnot denied the suggestion that, the   petitioner is not\n\ncome under the purview of the third party.     Over all\n\nevaluation of the affidavit evidence and documentary\n\nevidence placed by the parties to the petition reflect\n\nthat, evidence given by the petitioner     prevail over\n\nand the respondent company has utterly failed to\n\nprove all the defenses forthcoming in the written\n\nstatement.20. In the light of my detailed discussions held\n\nabove, I am of the view that, the alleged accident had\n\noccurred, due to the rash and negligent riding of the16                SCCH-18             MVC 1958/2020rider of the Motor cycle bearing registration\n\nNo.KA­41­EC­2821.       Hence, without making much\n\ndiscussion on the point of the rash and negligent\n\ndriving of the driver of the offending vehicle, I am\n\nanswering the Issue No.1, in the Affirmative.ISSUE NO.2 :21. This issue is with respect to the entitlement\n\nof relief claimed by the petitioner. The petitioner\n\nthrough this petition, claiming compensation of\n\nRs.15,00,000/­ on account of the injuries sustained\n\nby him in the accident, under different heads.22. Before appreciation of the evidence placed\n\nby the petitioner about the injuries sustained by him,\n\nin the accident and its consequences, it is apt to note\n\nherein, the preposition laid down in the following\n\nland mark judgment, while appreciating the injury\n\ncases inMotor Vehicle Act.Civil Appeal No.8981/2010 D.D. 18.10.2010\n\nRajkumar V/s Ajay Kumar & Another.17                           SCCH-18                 MVC 1958/2020"In the aforesaid case, it was held that,\n            the court has to make judicious attempt to\n            award compensation to the loss suffered by\n            the claimant. The compensation should not be\n            assessed conservatively. On the other hand,\n            compensation should also not be endeavoring\n            to secure some uniformity and consistency.\n            The object of awarding compensation is to\n            make good the loss suffered as a result of\n            wrong done, as far as money can do so, in a\n            fair reasonable and equitable manner." "while\n            determining quantum of compensation, in\n            such cases, the court has to strike a balance\n            between      the    inflated   and     unreasonable\n            demands of a victim and the equally untenable\n            claim   of   the    opposite   party   saying   that\n            nothing is payable.      That sympathy for the\n            victim does not, and should not, comes in the\n            way of making a correct assessment. But if a\n            case is made out, and the court must not be\n            chary of awarding adequate compensation. "23.     In connection with the injuries sustained\n\nby the petitioner, has produced wound certificate\n\nmarked at Ex.P6. The said document discloses that,\n\nhe sustained the following injuries:­1.     Pain and swelling deformity left knee\n              and leg.18                      SCCH-18               MVC 1958/20202.    Crepitus and abnormal movement in\n             left knee and leg.X­ray shows fracture both bones left\n       leg    (Communited         fracture   with    intra\n       articular extension)24. According to the doctor, above said injuries\n\nare grievous in nature.             To substantiate the said\n\nfact, the petitioner has placed, 25 medical bills and\n\n21 prescriptions as per Ex.P.12 and Ex.P.13                  and\n\ndischarge summary as per Ex.P. In addition to this,\n\nalong with the         evidence of PW­2, produced MLC\n\nextract, entire case sheet and X­rays as per Ex.P­13\n\nto     Ex.P.15.      On    going     through   the    discharge\n\nsummary         of   Punya    hospital,      Channarayapatna\n\nmarked as per Ex.P.16, the petitioner was admitted\n\nas an inpatient on 25.2.2020 and discharged on\n\n2.3.2020. For having taken note of the nature of the\n\ninjury sustained by the petitioner and by keeping in19                 SCCH-18                MVC 1958/2020mind about the sufferings of the petitioner and also,\n\nkeeping in mind about the evidence given by the PW­\n\n2 about the nature of injuries sustained by the\n\npetitioner and mode of treatment given to him, I am\n\nof the view that, the petitioner is entitled for\n\ncompensation of Rs.50,000/­ towards pain and\n\nsuffering.25.    Another point to be discussed herein,\n\nabout the loss of income during laid up period and\n\nrest period, is concerned, In the petition, the\n\npetitioner has stated that, prior to the accident, he\n\nwas      an   agriculturist   and    earning   a    sum    of\n\nRs.15,000/­ per month. But, he has not placed any\n\niota of documents to show his definet income of\n\nRs.15,000/­ per month. On the other hand, it is to be\n\nnoted that, the injuries sustained by him is, grievous\n\nin nature, as per the wound certificate.           On going\n\nthrough the discharge summary of Punya hospital,\n\nChannarayapatna       marked    as    per   Ex.P.16,      the20                SCCH-18             MVC 1958/2020petitioner was admitted as an inpatient on 25.2.2020\n\nand discharged on 2.3.2020 i.e. for a period of 7\n\ndays. Hence, definitely, there was some difficulty to\n\nhim, during the period of treatment, to do daily\n\nroutine work and to do his work for livelihood at least\n\nfor one month. At the time of injuries of fracture, it\n\nis very difficult for him, to do his work, as he was\n\nearlier during the period of treatment. Hence, I am of\n\nthe view that, he is entitled for compensation of\n\nRs.14,500/­ towards loss of income during the\n\nlaid up period and rest period.26. The petitioner herein, in connection with his\n\ntreatment expenses, at the time of his evidence,\n\nplaced 25 medical bills of Rs.71,524/­ along with\n\n21 prescriptions as per Ex.P11 and Ex.P12.           In\n\nconnection with the said medical bills, except the\n\nsuggestion that, the said documents are created\n\ndocuments, no contra materials placed, to disbelieve21                      SCCH-18             MVC 1958/2020the said documents. On going through the nature of\n\nthe injuries sustained by the petitioner, and mode of\n\ntreatment taken by him, will not gives an access to\n\nsuspect the genuineness of the said documents.\n\nHence, the petitioner is entitled for compensation of\n\nRs.71,524/­ under the head of medical expenses.27.   The petitioner herein, as per the medical\n\nrecords, had sustained grievous injuries.            And took\n\ntreatment as an inpatient and as an outpatient, as\n\ndiscussed above. As such, during the period of\n\ntreatment,     he    could    have    spent   some     amount\n\ntowards travelling, food and nourishment.               Hence,\n\nthe     petitioner   is    entitled   for   compensation     of\n\nRs.10,000/­ towards attendant charges, food, and\n\nnourishment and conveyance charges.28. Another material point of loss of future\n\nincome is concerned, the petitioner herein, asserting\n\nthat,    he    had    sustained       permanent      disability,\n\nconsequent upon the injuries sustained by him. In22                    SCCH-18               MVC 1958/2020the evidence of the PW­1, reiterated the same thing\n\nforthcoming        in   the   main    petition.     As     already\n\ndiscussed above, wound certificate placed by him as\n\nper Ex.P6, goes to show that, he had sustained two\n\ngrievous injuries. To substantiate this, the petitioner\n\nhad      placed,    wound      certificate,   and        discharge\n\nsummary, medical bills and prescriptions.                 But, on\n\ntaking birds eye view towards said documents,\n\ndisclose about gravity of the injuries sustained by the\n\npetitioner. Apart from this, placed the evidence of the\n\ndoctor     by name Dr.Mahesh.V, who examined as\n\nPW­2.29. In the evidence of PW­2, deposed that, on\n\nthe history of RTA, the petitioner had sustained, Pain\n\nand swelling deformity left knee and leg and crepitus and\n\nabnormal movement in left knee and leg.             X­ray shows\n\nfracture of both bones of left leg ( communited fracture\n\nwith   intra   articular   extension).   In this regard, he\n\nunderwent procedure of locking plate and screws and23                  SCCH-18                     MVC 1958/2020discharged   on    2.3.2020,      with   adivse    of   follow   up\n\ntreatment. Further, deposed that, he examined the\n\n\npetitioner on 26.7.2022, on the basis of x­ray, it was\n\nnoticed the following difficulties, 1) mal united fracture,\n\nleft tibia and fibula with restricted ankle and knee\n\nmovements with implant in situ,             2) having difficulty in\n\nwalking, sitting, squatting and stair climbing and 3) he\n\nwalks with limping gait. After evaluation of point of\n\ndisability   for   left   lower     limb,    movements      flexion\n\nextension,   also with respect to the muscle power along\n\nwith mobility and stability components, and in the light\n\nof guidelines by the Ministry of Social Justice and\n\nEmpowerment,        came       to    the      conclusion     that,\n\npetitioner is having, 36.75% partial and permanent\n\ndisability to left lower limb.       And opined that,            the\n\npetitioner requires, one more surgery which will cost\n\nabout 40 to 50 thousand for removal of implants in\n\ntheir hospital.     It is pertinent to note that, with\n\nrespect to the whole body disability, the witness has24                 SCCH-18           MVC 1958/2020not expressed anything, except stating the percentage\n\nof disability with regard to left lower limb.     And\n\nplaced MLC extract, entire case sheet and three x­\n\nrays in support of his evidence.30. At the time of cross­examination of this\n\nwitness, stated that, he was not the treated doctor.\n\nAs per records, the petitioner had undergone surgery\n\nand implants are not yet removed, and the fracture of\n\nthe petitioner mal united. And not denied the\n\nsuggestion that in the Ex.P.15. there is no whisper\n\nabout mal union and in the case sheet also, no\n\nwhisper in this regard. And there is a shortening of\n\nhalf inch bone.   Further answered that, there was no\n\nbone grafting in connection with the shortening of the\n\nbone and denied the suggestion that, only on\n\nassumption, he expressed his opinion about limping\n\nof the petitioner.   And answered that, the muscle\n\npower of the petitioner is diminished little bit. And\n\ndenied the suggestion that, he assessed the disability25                   SCCH-18           MVC 1958/2020of a particular limb, with regard to fracture in higher\n\nside, and also denied the suggestion that,         whole\n\nbody disability of the petitioner is only to the extent of\n\n8%     and he assessed the disability     in connection\n\nwith the mobility and stability components, in higher\n\nside. Further denied the suggestion that, the fracture\n\nof the petitioner is simple fracture.31. Over all appreciation of the evidence of PW­\n\n2, along with entire medical documents,          with an\n\nappreciation of the nature of the injuries sustained\n\nby the petitioner, and mode of treatment taken by\n\nhim, I am of the view of         that, percentage of the\n\ndisability expressed by the PW­2 in connection with\n\nparticular limb seems little bit exorbitant. Hence, it is\n\napt to take the percentage of disability of the whole\n\nbody of the petitioner as 12%. The same will meet\n\nthe ends of justice.32. In connection with the age of the petitioner\n\nis concerned, on going through the cause title of the26                  SCCH-18              MVC 1958/2020petition reveals that, as on the date of the petition,\n\nhis age was 60 years.           To prove the age, he had\n\nplaced Aadhaar card marked as per Ex.P.10. In the\n\nsaid document, date of birth of the petitioner has\n\nbeen mentioned as 6.5.1956. The accident was\n\noccurred on 25.2.2020. Therefore, as on the date of\n\naccident, the age of the petitioner is to be considered\n\nas 64 years. To the sai0d age as per Sarla Verma\n\ncase, multiplier '7' is to be taken into consideration.33.    Next factual aspect of the income of the\n\npetitioner is concerned, in the main petition, and also\n\nin    the       examination­in­chief   evidence,   it   is   the\n\nassertion of the petitioner that, prior to the accident,\n\nhe        was     an   Agriculturist    and   was       earning\n\nRs.15,000/­ per month. In this regard, no iota of\n\nevidence has been placed to show that, he was\n\nearning Rs.15,000/­ per month prior to the date of\n\naccident.        In such a situation, as per law, notional\n\nincome has to be taken in to consideration. But, the27                 SCCH-18             MVC 1958/2020said notional income has to be taken judiciously, by\n\ntaking into consideration of the year of the accident.\n\nAs per the notional income chart, it is apt to take the\n\nnotional income of the petitioner as Rs.14,500/­ for\n\nthe year 2020.34. In the light of my detailed discussions held\n\nabove, no doubt injuries sustained by the petitioner\n\ndefinitely come in the way of his future, in a slight\n\nmanner, to do his daily routine work, as well as to do\n\nhis work for livelihood. Hence, the petitioner herein,\n\nis entitled for compensation under loss of future\n\nincome as follows:Rs.14,500X12X7 X 12/100 = Rs.1,46,160/­35. Next factual aspect loss of amenities is\n\nconcerned, due to the accidental injuries, definitely,\n\nthe petitioner will suffer in future, both physically\n\nand functionally.    All the medical records and the\n\nevidence of PW­2, substantiates that, due to the\n\ndisability of the petitioner, he will suffer a little bit,28                  SCCH-18               MVC 1958/2020in future also, while doing his day today activities as\n\nwell as to do his avocation for his livelihood. Hence,\n\nthe petitioner is entitled for Rs.30,000/­ towards\n\nloss of amenities.36.   In connection with the future medication\n\nexpenses is concerned, the PW2 at the time of his\n\nevidence, stated that the petitioner needs surgery for\n\nremoval      of   implant   which   would    cost   around\n\nRs.50,000/­.        But, no estimation placed in this\n\nregard, to have an idea about the definite expenses\n\ntowards future medical expenses. Hence, by taking\n\ninto consideration of the nature of injuries sustained\n\nby the petitioner, I am of the view that, the\n\npetitioner is entitled for compensation of Rs.\n\n20,000/­ under the head of future medication.37. In view of my due discussions held above,\n\non various aspects, the petitioner is entitled for\n\ncompensation in toto, under the following heads:29                   SCCH-18                 MVC 1958/2020Compensation heads                Compensation\n                                  amount\n1. Pain and Suffering             Rs.     50,000­00\n2. Loss of income during Rs.              14,500­00\nlaid­up period and rest\nperiod\n3. Medical expenses               Rs.     71,524­00\n4.Attendant, Nourishment Rs.              10,000­00\nand Conveyance Charges\n5. Loss of future income          Rs. 1,46,160­00\n6. Loss of Amenities              Rs.     30,000­00\n7.Future Medical expenses         Rs.     20,000­00\n                        Total     Rs.3,42,184­0038. Accordingly, the petitioner is entitled for\n\ncompensation      of   Rs.3,42,184/­,       (Rupees      Three\n\nLakhs, Forty Two Thousand, One Hundred and\n\nEighty Four only) along with interest @ 6% per\n\nannum, as per the proposition laid down by the\n\nHonourable     High     court    of     Karnataka   in    MFA\n\nNo.103557/2016, Between Sri Ram General Insurance\n\nCompany      Limited   V/S.   Lakshmi    And    Others   dated.\n\n20.03.2018. And MFA No.30131/2019 dated.12.5.2020,30                  SCCH-18               MVC 1958/2020from the date of the petition, till the realization of the\n\naward amount.LIABILITY:39.    In so far as, liability is concerned, it is the\n\nassertion of the petitioner that, due to the negligence\n\non the part of the rider of the offending vehicle\n\nbearing      registration   No.KA­41­EC­2821,        alleged\n\naccident had taken place. In the said accident, the\n\npetitioner had sustained injuries.         In this regard,\n\nevidence given by the petitioner about the actionable\n\nnegligence on the part of the driver of the motor cycle\n\nremained unshaken. As such, the respondent No.1\n\nbeing the RC owner and the respondent No.2 being\n\nthe insurance company are jointly and severally liable\n\nto pay the compensation to the petitioner.40.    On the other hand, the respondent No.1\n\nbeing the owner of the offending vehicle has not\n\nadduced any evidence for consideration in connection\n\nwith the strong defence of the respondent No.231               SCCH-18             MVC 1958/2020company that, the rider cum owner of the offending\n\nvehicle, had no valid and effective driving license to\n\ndrive the said vehicle as on the date of the accident.And also highlighted the point in page No.2, para\n\nNo.2 of the examination in chief affidavit of RW­1\n\nthat, after due investigation process, charge sheet\n\nhas been filed against the rider cum owner of the\n\noffending vehicle alleging that, he had committed the\n\noffences punishable underSec.279and338of IPC\n\nincluding Under Sec.3 and Sec.181 of Motor\n\nVehicles Act. When the charge sheet has been filed\n\nagainst the rider cum owner of the offending vehicle\n\nthat, he had no valid and effective driving licence,\n\nthen, onus shifts on him, to place the material\n\ndocument of D.L, to impeach the allegations made\n\nagainst him. Further, no whisper about giving reply\n\nto the police notice in this regard, during the course\n\nof investigation process, in answer to Ex.P.9. In such\n\na situation, adverse inference can be drawn against32                     SCCH-18             MVC 1958/2020the owner cum rider of the offending vehicle, holding\n\nthat, the rider had no valid and effective driving\n\nlicense as on the date of the accident. As such, he\n\ncannot escape from his liability to pay compensation\n\nto the petitioner, determined by this court, in view of\n\nviolation of the terms and conditions of the insurance\n\npolicy, though it was existed as on the date of the\n\naccident.41. Now, question arose for consideration as to,\n\nwho is liable to pay compensation to the petitioner at\n\nfirst,    as   he   is   victim   under   social   legislation.\n\nAccordingly, before        coming to the conclusion with\n\nrespect to the payment of compensation amount in\n\nthe absence of valid D.L. as on the date of the\n\naccident is concerned, it is necessary to note the\n\nfollowing authorities.1) 2004 (3)       SCC 297 betweenNational\n\nInsurance Co.Ltd., Vs. Swaran Singh & Others33                   SCCH-18                 MVC 1958/2020In the aforesaid case, with due discussions the Hon'ble\n\nApex Court came to the conclusion that, the insurer has\n\nsatisfactorily proved its defence in accordance with the provision\n\nofSection 149(2)R/W Subsection 7, as interpreted by the court.\n\nAnd the Tribunal can direct the insurer liable to be reimbursed\n\nby the insured for the compensation amount, which has been\n\ncompared to pay to the third party under the award of the\n\nTribunal. In one word it is necessary to note that, through this\n\nauthority, highlighted about the concept pay and recovery.2) 2018 SCC 208 between Pappu & Others\n\nVs. Vinod Kumar Lamba & Another\n\n       In the aforesaid case it was observed that, where on\n\nadjudication of claim under the Act, the Tribunal arise at a\n\nconclusion that, the insurer has satisfactorily proved its defence\n\nin accordance with law with the provision ofSection 149(2)R/W\n\nSub­section 7, the Tribunal can direct that, the insurer is liable\n\nto be reimbursed by the insured for the compensation and other\n\namount which it has been compelled to pay to the third party\n\nunder the award of the Tribunal.     In the aforesaid case also,\n\nhighlighted about the principle of pay and recovery.34                   SCCH-18                    MVC 1958/20203) 2018 (9) SCC 650 betweenShamanna &\n\nAnother       Vs.     Divisional        Manager,        Oriental\n\nInsurance Co. Ltd., & Others"In para No.5 of the aforesaid judgment, on detailed\n\ndiscussion with respect to the third party risk the doctrine of\n\npay and recover was considered by following the judgment of\n\nHon'ble Apex Court inSwaran Singhcase."4).   MFA     No.8422/2018           dated    30.9.2021\n\nbetween      Smt.Thulasi        Ramesh        &     Others     Vs.\n\nRegional Manager & Others\n\n       " In the aforesaid recent judgment our own Hon'ble High\n\nCourt of Karnataka observed that, if the driver of the offending\n\nvehicle did not possess a valid driving licence, the insurer is\n\nliable to satisfy the award with a liberty to recover the same from\n\nthe owner of the vehicle."42.In the light of the prepositions laid down in\n\nthe aforesaid cases,         it is relevant to note that, the\n\ndoctrine of pay and recover has been considered by\n\nthe Hon'ble Apex Court inSwaran Singh's Case and\n\nin Pappu's case. And the said judgments of the35                SCCH-18              MVC 1958/2020Honourable Apex Court has not been over ruled till\n\ntoday, and the propositions laid down in the said\n\njudgments, remained intact and the said judgments\n\ntill today are in force. Hence, to protect the interest\n\nof third party, it is apt in the case on hand, to follow\n\nthe doctrine of pay and recover. Since as perArticle\n\n12of the Constitution of India, company also comes\n\nunder the concept of State. It is the duty of the State\n\nto protect the interest of the third party.43. In the light of my detailed discussion held\n\nabove, I am of the view that, though the respondent\n\nNo.1 being the owner cum rider of the offending\n\nvehicle, cannot escape from his liability to pay\n\ncompensation to the petitioner, in view of violation of\n\nterms and conditions of the policy. To protect the\n\ninterest of the third party, it is necessary to direct the\n\ninsurance company to pay compensation to the\n\npetitioner and thereafter to recover the same from the36                SCCH-18              MVC 1958/2020owner of the offending vehicle, through due process\n\nof law.44.   As such, the respondent No.2, being the\n\ninsurance company and indemnifier has to satisfy the\n\naward and recover the same from the owner of the\n\noffending vehicle who is the respondent No.1 in the\n\ncase on hand, in view of the valid insurance policy.\n\nAs such, the respondent No.2 is liable to pay\n\ncompensation with interest at 6% p.a. from the date\n\nof petition till its realization. Thereafter, recover the\n\nsame from the owner of the offending vehicle,\n\nthrough due process of law. Accordingly, I am\n\nanswering the issue No.2 partly in the Affirmative.\n\nISSUE NO.3:45.   In view of my due discussions on issue\n\nNos.1 & 2, I proceed to pass the following;37                       SCCH-18                     MVC 1958/2020*O R D E R*\n\n            The        claim    petition     filed    by   thepetitioner U/S 166 ofMV Actis hereby\n\n     partly allowed with costs.The        petitioner     is     entitled      for\n\n     compensation of Rs.3,42,184/­, (Rupees\n\n     Three Lakhs, Forty Two Thousand, One\n\n     Hundred and Eighty Four only), along\n\n     with the interest at the rate of 6% per\n\n     annum, from the date of               the petition till\n\n     the date of deposit.Expenses to be incurred for future\n\n     medication shall not carry any interest.The respondent No.2 being the\n\n     insurance company, is liable to pay the\n\n     compensation determined by this court,\n\n     with interest at 6% p.a. from the date of\n\n     petition   till    its    realization    within       two38                  SCCH-18             MVC 1958/2020months from the date of this order at the\n\n       first instance, thereafter, recover the same,\n\n       from the respondent No.1, who is the\n\n       owner of the vehicle, in accordance with\n\n       law.After deposit of the compensation\n\n       amount with interest, 40% is directed to be\n\n       deposited in any nationalized/ Schedule\n\n       bank in F.D for a period of 3 years.     And\n\n       remaining 60% shall       be released to the\n\n       petitioner through due process of law.Advocate fee is fixed at Rs.500/­.Draw award accordingly.(**Dictated to the stenographer through on line,\ncorrected by me and then pronounced in open court\non this the 23rd day of February 2023**).(V.NAGAMANI)\n                      III ADDL.SMALL CAUSES JUDGE\n                            & ACMM, BANGALORE.39              SCCH-18            MVC 1958/2020ANNEXURE\nList of witnesses examined on petitioner's side:PW1           Shri.Manjegowda\nPW2           Dr.Mahesh.VList of documents exhibited on petitioner's side:Ex.P1         True copy of FIR\nEx.P2         True copy of Complaint\nEx.P3         True copy of Spot Mahazar\nEx.P4         True copy of Spot sketch\nEx.P5         True copy of IMV report\nEx.P6         True copy of Wound certificate\nEx.P7         True copy of Charge sheet\nEx.P8         Statement of Ranjith\nEx.P9         Police notice\nEx.P10        Notarized copy of Aadhaar card\nEx.P11        25 Medical bills\nEx.P12        21 Prescriptions\nEx.P13        MLC extract\nEx.P14        Entire case sheet\nEx.P15        X­rays\nEx.P16        Discharge summaryList of witnesses examined on respondents' side:RW­1          Ibrahimsab Mujaveer\n\n\nList of documents exhibited on respondents' side:Ex.R1         Authorization letter\nEx.R2         Insurance policy\n\n\n                III ADDL.SMALL CAUSES JUDGE\n                      & ACMM, Bengaluru.