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Judgment
A.V. Chandrashekara, J.—Appellant in both the appeals i.e. MFA 8570/2009 and 8571/2009 is the respondent No. 2 in case bearing MVC 9175/2007 and 9176/2007 on the file of MACT, Court of Small Causes, Bangalore. Cross objectors in MFA CROB 99/2013 and 100/2013 are the claimants in the said MVC cases.
Claim petitions filed by Sunil claimant in MVC 9175/2007 (cross objector in MFA CROB 99/2013) and Shreekanth, claimant in MFA 9176/2007 (cross objector in MFA CROB 100/2013) have been allowed by a common judgment and award dated 6.4.2009 by the learned MACT, Bangalore and a sum of Rs. 2,12,000/- with interest is awarded as compensation in favour of claimant-Sunil and Rs. 8,25,300/- with interest is awarded as compensation in favour of claim ant-Shreekanth.
The facts leading to filing of the claim petitions are as follows:
On 22.8.2007, Shreekanth in MVC 1976/2007 was riding the motorcycle bearing No. KA-12-H-7484 along with Sunil as pillion rider from Kodagu to Bangalore and when they reached near Chatrada Doddi, Ramanagara, a canter vehicle bearing KA-05-A-2602 came in a rash and negligent manner and dashed against the motorcycle from behind. As a result of the same, both the claimants fell down and sustained injuries. Immediately they were shifted to Government General Hospital, Ramanagara and in view of severe injuries, they were shifted to Udbhava Hospital, Bangalore where they were treated for 1 day and later they were shifted to D.G. Hospital, Bangalore. 4. One Sudheer Naik relative of Shreekanth chose to file the first information before the police at Ramanagara on the next date i.e., 23.8.2007. On the basis of the first information, a case came to be registered in Crime No. 174/2007 for offences punishable under Sections 279, 337 and 338 of IPC. In the said first information lodged by Sudheer, it was stated that an unknown vehicle dashed against the motorcycle. On 24.8.2007, he chose to give further statement to the police mentioning the number of the offending vehicle which dashed against the motorcycle. According to him an Eicher canter vehicle bearing No. KA-05-A-2602 was driven in a rash and negligent manner and dashed against the motorcycle. Later on police recorded the statement of eyewitness namely Hanumaiah and after concluding the investigation, police chose to file charge sheet against the driver of the canter Mr. Anand. The claim petitions came to be filed separately by Sunil and Shreekanth attributing negligence to the driver of the canter.
The insurer has filed the detailed written statement in both the claim petitions denying all the material averments in regard to the involvement of canter in the accident. They have called upon the claimants to strictly prove the contents of the claim petition apart from establishing the effect of the injuries in so far as future earning capacity is concerned.
On the basis of the above pleadings, following common issues were framed by the Tribunal:
1) Whether the petitioner proves that he had sustained injuries in RTA that occurred on 22.8.2007 at about 9.15 p.m. on B.M. Road near Chatrada Doddi Ramanagara within the limits of Ramanagara police station and sustained injuries was due to rash and negligent driving of Eicher canter bearing registration No. KA05-A-2602 by its driver?
2) Whether the petitioner is entitled to compensation? If so, how much and from whom?
3) By what order or award?
Shreekanth and Sunil have been examined as PWs-1 and 2 respectively and Dr. Vishwas Shetty, CMO of D.G. Hospital who treated the claimants has been examined as PW-3 and as many as 24 exhibits have been produced on their behalf. No evidence is adduced and no documents are produced on behalf of the insurer. Owner of the vehicle in question Manjunath @ Manju was placed ex parte before the Tribunal. Ultimately, the learned Judge has answered issue No. 1 in the affirmative and issue No. 2 in partly affirmative and allowed the claim petitions.
It is argued before this Court by the learned counsel for the insurer that the Tribunal has not analysed the oral and documentary evidence in right perspective. It is argued that the evidence has not been assessed on the touchstone of intrinsic probabilities. It is argued that initial responsibility would on the claimants to prove the involvement of the vehicle and the same will have to be discharged effectively and only they would be entitled for compensation against the owner and insurer on the basis of the contract indemnity. It is argued that there are glaring inconsistencies in the evidence of PWs-1 and 2 and that neither Sudheer Nayak, nor Taranath nor Hanumaiah have been examined.
Admittedly, both the claimants were seriously injured in the accident. The dispute is in regard to the involvement of the vehicle. What exactly should be the approach towards the assessment of evidence in regard to involvement of vehicle in accident has to be looked into. In an case like this, evidence should be assessed on the basis of broad preponderance of probabilities. The initial burden was on the claimants. They were injured in the said accident and the involvement of vehicles in the accident is not "disputed. The fact that both the claimants were injured in the accident while they were coming from coorg to Bangalore is not disputed. Ex. P-1 is the first information registered in Crime No. 174/2007 which was registered at about 9.00 am on the next date of accident i.e., 23.8.2007 on the basis of the information of Sudheer, a resident of Mysore and relative of claimant Shreekanth. Ex. P-1 is the first information report coupled with the statement of Sudheer. He has stated that he received a phone call from Shreekanth about the injuries sustained by him in the accident that occurred at Ramanagara. Therefore, he came from Mysore to the place of accident. The exact place of the accident was near Chatrada Doddi 4 kms away from Ramanagara. He found both of were had been injured and admitted to Govt. General. Hospital Ramanagara. Later on they were shifted to Udbhava Hospital, Bangalore, Sudheer came to the hospital at Bangalore and after talking to them, he came to Ramanagara and lodged the first information before the Police at about 9.00 am on 23.8.2007. The further statement of Sudheer was recorded by the police on 24.8.2007 and the same is marked at Ex. P-2. In the further statement of Sudheer, registration number of the vehicle is found as KA-05-A-2602. It is true that in the further statement given to the police after registration of the case source of the information about the exact vehicle involved in the accident is not forthcoming. What is perused in Ex. P-2 is that soon after the accident Shreekanth had telephoned to him and had given brief account of the accident and wanted him to come to the place of accident at the earliest. Himself and Taranath came to Ramanagara and shifted the claimants to the hospital.
In MACT cases, statement recorded under Section 161 of Cr.P.C. is admissible in law. Ex. P-3 is the wound certificate of claimant Shreekanth issued by CMO, D.G. Hospital Bangalore. It discloses that Shreekanth had sustained injuries and he was accompanied by Taranath, his cousin brother. He was brought to D.G. Hospital at about 11.55 p.m. on 23.8.2007. The name of the person who is stated to have witnessed the accident is found as Hanumaiah, in the charge sheet filed by the Police.
What is argued by Mr. S. Srishaila, learned counsel for the insurer is that mere mentioning of the name of Hanumaiah as an eyewitness in the charge sheet is insufficient to prove that the vehicle was involved in the accident.
Nothing came in the way of the insurer to have examined the said Hanumaiah who is stated to be an eyewitness. Ex. P-14 is the wound certificate of claimant Sunil which also bears a reference that he was accompanied by Taranath, cousin brother. There is also reference of the road traffic accident. From a conjoint reading of these two wound certificates, it is evident that both were injured in a road traffic accident that occurred on 22.8.2007. Admittedly, both were seriously injured and they were admitted to D.G. Hospital. Shreekanth is examined as PW-1 and he has reiterated the contents of the petition in the affidavit filed in lieu of examination-in-chief. He has been cross examined by the learned counsel for the insurer therein. PW 1 has deposed that his cousin brother has lodged complaint and it was the first complaint about the accident. He has deposed that he did not lodge the complaint as he was not in a position to lodge complaint and even pillion rider Sunil also could not lodge the complaint. It is his case that he had observed the number of vehicle since it was parked at a little distance and he noted the number of the vehicle and it was given to Sudheer on the next date. What is argued by Srishaila is that if such an information was given either by Sunil or Shreekanth to Sudheeer, nothing would have come in the way of Sudheer to state the number of the vehicle, its colour, nature of the vehicle etc.
It is true that PW-2 has feigned ignorance about the non-mentioning of the number of the vehicle in the first information lodged before the police. In the first information, it is mentioned as unknown vehicle.
Ofcourse when the vehicle bearing KA-05-A-2602 was subjected to inspection by IMV, no visible damages were noted by the MV Inspector and it is found in Ex. P-5. Therefore, it is argued that if the vehicle in question had dashed against the motorcycle, it would have sustained damages and it would have been reflected in the IMV report. Suggestion put to him that he has purposefully implicated the vehicle to get compensation, has been specifically denied. Both PW-1 and 2 do not know the name of the driver of the offending vehicle. PW-2 has deposed that Taranath is his relative and he has deposed that he has not lodged any complaint. He has admitted about the contents of the complaint lodged by Sudheer to the police at Ramanagara. He has feigned ignorance about mentioning of an unknown vehicle in the FIR. PW-2 has deposed that they had informed Taranath about canter lorry causing accident and the said vehicle was going away from that place after sometime. Then he had noted the number of the vehicle on a slip of the paper. He has feigned ignorance as to whether he had handed over the said chit containing the number of the offending vehicle, since he was in ICU. A suggestion put to him that the accident occurred due to the negligent driving of the two wheeler by Shreekanth has been specifically denied.
In the case of Ravi Vs. Badrinarayan and Others, , the Hon''ble apex court has held that dismissing claim petition in regard to delay in lodging the FIR cannot be the main ground. As per the facts of the said case, a truck had hit the claimant causing multiple injuries and the father of the victim had taken him to the hospital. Even though police had come to the hospital to record the FIR, the same could not be recorded on account of the agony through which his father was undergoing. Ultimately the Hon''ble apex court has held that being a common man, he was oblivious of the niceties of law and did not feel it necessary to inform the police. Apart from this, the owner of the vehicle was aware of the accident. A formal FIR was lodged months after the date of the accident and claim petition was dismissed mainly on the ground of delay in lodging the FIR. Since proper explanation was given by the victim''s father with regard to the delay, the Hon''ble apex court has ultimately allowed the appeal.
In the case of PARMESHWARI v. MAIR CHAND AND OTHERS (2011 SCR (Civil) 241), the Hon''ble apex court has held thus:
''Strict principles of proof in a criminal case are not attracted. The standard of proof beyond reasonable doubt as insisted in criminal cases is not required to be complied in cases relating to assessment of compensation arising out of accident cases. Admittedly the injured are eyewitnesses and they are the best witnesses.'' It is true that there is some inconsistency in the version of PW 1 and PW 2 in regard to the nature of the vehicle and cause for the accident. But the fact that Sudheer had come to D.G. Hospital on the next day morning to see both of them is not seriously disputed. The entire statement of Sudheer Naik under Section 161, Cr.P.C. by the police is part of the charge sheet marked as Ex. P6 and the said statement is marked as Ex. P2. The name of Hanumaiah who is stated to be an eyewitness is found in the charge sheet and he is a resident of the place where the accident took place.
Admittedly both the claimants had sustained severe injuries and they were in ICU. Even if the first informant-Sudheer Naik had gone to the hospital before lodging the FIR, as observed by the trial court, the possibility of one of the claimants handing over a chit containing the registration number of the offending vehicle cannot be found fault with and since PW 1 was also admitted in the hospital and was in ICU. As such, PW 1 is not expected to know when the complaint was lodged and whether the number of the offending vehicle was mentioned in the complaint.
It is the specific case of PW 1 that the pillion rider, Sunil wrote down the number and handed it over to Sudheer on the next day. Of course this part of the evidence is inconsistent with the evidence of PW 2 who had informed Taranath over phone that the canter caused the accident. However, Sunil has deposed that he had noted down the number of the offending vehicle, but does not remember to whom he handed over the chit containing the number. One cannot forget that both the claimants had sustained severe injuries and were in great pain and agony. The possibility of not recollecting at that time cannot be blown out of proportion at this stage.
Though there is some inconsistency between the versions of PW 1 and PW 2 insofar as the handing over of the chit containing the number of the offending vehicle either before lodging the complaint or subsequently thereafter, it does not assume much importance. However, it is clear that PW 2 had noted down the number of the canter on a piece of paper. As per the facts of the decision mentioned in the case of RAVI (supra), there was an inordinate delay in filing the complaint and that has not been seriously taken note of by the Hon''ble apex court while allowing the claim petition. Ultimately credibility of the witnesses is important. As already observed, both the claimants were injured and they are eyewitnesses. In the light of overall oral evidence of PW 1 and PW 2 and connected documentary evidence in the form of Exs. P2 and P6 and investigation conducted by a responsible police officer doing his official duty, it could be said that the offending vehicle in question was the canter lorry bearing registration No. KA-05-A-2602.
The learned judge has discussed the entire oral and documentary evidence at length and has assigned valid and cogent reasons as to how he is persuaded to believe the oral testimony of PW 1 and PW 2 in the light of Exs. P2 and P6. In fact the decisions relied on by the insurer have been distinguished with the facts of the present case. The necessary discussion is found in paragraphs 15 and 16 of the impugned judgment. Viewed from any angle, the approach of the Tribunal with regard to assessment of evidence and involvement of the vehicle in question cannot be found fault with. Thus the trial court is justified in holding that it was the canter bearing KA-05-A-2602 which was involved in the accident in question.
Insofar as the quantum of compensation is concerned, the trial court has awarded a sum of Rs. 25,000/- towards pain and suffering, Rs. 15,000/- towards loss of amenities and pleasure in future life, Rs. 1,55,000/- towards medical expenses, Rs. 7,000/- towards loss of earning during the laid-up period, in all Rs. 2,12,000/- has been awarded to Sunil as compensation, claimant in MVC. 9175/07.
Insofar as the claimant in MVC. 9176/07 is concerned, following is the compensation awarded:
What is argued before this court by the learned counsel for the claimants is that the compensation is grossly inadequate and needs to be enhanced, keeping in mind the number of injuries and gravity of injuries and the effect thereof on their future earning capacity and loss of pleasure and amenities.
Ex. P14 is the wound certificate of Sunil (claimant in MVC. 9175/07) and Ex. P15 is the discharge summary. Exs. P16 and P17 are bills and prescriptions and Ex. P18 is the photograph disclosing the present position of the claimant after the accident. It is seen that he was initially treated in Government Hospital, Ramanagar and then shifted to Udbhav Hospital where he was treated for one day and thereafter was in-patient for 11 days in D.G. Hospital, Bengaluru. He underwent split section skin grafting and external debridement with flap closure surgery.
Dr. Vishwas Shetty, the doctor who treated both of them, has been examined as PW 2. He had been admitted with facial injury with profuse bleeding and multiple lacerated wound and abrasions all over the body. External fixation and split skin grafting was done on 27.8.2007. Mini dressing was done on 1.9.2007 and 4.9.2007. He has placed reliance on the medical case sheet maintained in the hospital in this regard.
Ex. P18, photograph clearly shows that he has suffered severe pain to his thigh and right leg and also face. Only Rs. 25,000/- is awarded towards ''pain and suffering.'' This is on the lower side. Awarding Rs. 40,000/- under the said head would meet the ends of justice. Only a sum of Rs. 15,000/- is awarded under the head ''loss of amenities and pleasure in future life.'' This is also on the lower side. Awarding Rs. 30,000/- would meet the ends of justice.
A sum of Rs. 1,65,000/- awarded towards ''medical expenses'' is borne out from the medical bills and prescriptions and it does not need any interference. Only a sum of Rs. 7,000/- is awarded under the head ''loss of income during the laid-up period'' assessing income at Rs. 3,500/- p.m. for a period of 2 months. In view of the gravity of the injuries and period of treatment for 11 days, it is on the lower side. Considering the gravity of injuries, he was not able to move about at least for 4 months and therefore loss of income will have to be assessed at Rs. 4,000/- as he was stated to be working as a server in a hotel. Thus he is entitled to Rs. 16,000/- under the head loss of income during the laid-up period.
No amount is awarded towards incidental expenses covering nutrition and diet, conveyance, attendant''s charges, etc. A sum of Rs. 10,000/- under this head would meet the ends of justice. Similarly no amount is awarded under the head disfigurement in the face and also right thigh. Awarding Rs. 50,000/- under the said head would meet the ends of justice as the said disfigurement is a marked one.
The doctor has assessed disability at 10% of the whole body. The claimant-Sunil may find it a little difficult to walk freely or squat. Even if disability is assessed at 5%, monthly loss of income would be Rs. 200/- and annually Rs. 2,400/-. He was aged 26 years and applying the proper multiplier which is 17, he would be entitled to Rs. 40,800/- under the head loss of future income. Thus the appellant in M.F.A. 8570/09 (claimant in MVC. 9175/07) is entitled to enhanced compensation as under:
In M.F.A. 8571/09, the respondent-Shreekanth (claimant in MVC. 9176/07) was also treated in D.G. Hospital. Exs. P9 and P10 are medical bills and Ex. P10 is the photograph showing his present position. Exs. P19 to P24 are medical records and x-rays. Ex. P7 is the discharge summary. Dr. Vishwas Shetty, the doctor who treated him, has deposed about the treatment given to Shreekanth in the said hospital. He had sustained dislocation of elbow joint of right hand and major facial injury with extensive scalp loss and left earlobe loss, extensive degloving injury with soft tissue loss to right upper limb, open elbow dislocation right with extensor muscle loss and soft tissue loss to right thigh. Local flap cover with abdominal flap cover to the right elbow joint and ulna and split skin grafting was done on 30.1.2008 under general anesthesia. He was in the said hospital since 70 days. Only, Rs. 60,000/- is awarded towards ''pain and suffering.'' In view of the gravity and nature of injuries, awarding Rs. 75,000/- under the said head would meet the ends of justice. Only a sum of Rs. 30,000/- is awarded under the head loss of amenities and pleasure in future life. In view of the serious injuries sustained by him and loss of soft tissues, there will be loss of amenities and pleasure in future life. On seeing the photograph, it is evident that the right hand has virtually become defunct because of the degloving injury, and therefore a sum of Rs. 75,000/- under this head would be just and proper.
A sum of Rs. 4,93,000/- is awarded towards medical expenses and it does not require any interference as it is supported by medical bills and prescriptions. Towards incidental expenses, only a sum of Rs. 7,000/- is awarded which is on the lower side, considering the fact that he was in the hospital for 70 days and required an attendant to look after him. Therefore awarding Rs. 50,000/- under the said head would be just and proper.
Only a sum of Rs. 17,000/- is awarded under the head loss of income during the laid-up period assessing monthly income at Rs. 3,500/- for a period of 6 months. Even if his income is assessed at Rs. 4,000/- p.m., loss of income will have to be calculated at least for 6 months and hence he will be entitled to Rs. 24,000/- under the said head. A sum of Rs. 50,000/- awarded under the head ''future medical expenses'' is reasonable and does not require any interference.
A sum of Rs. 1,42,800/- has been awarded under the head loss of future income on account of disability, assessing disability at 20%. Taking into consideration the number of injuries and gravity of injuries and the difficulty faced by him, assessing his disability at least at 30% would be proper. Thus monthly loss of income would be Rs. 1,200/- and annually it will be Rs. 14,400/-. This will have to be multiplied by 18, the proper multiplier for a person of his age. Thus the total loss of future income on account of disability will be Rs. 2,59,200/- and not Rs. 1,42,800/- awarded by the Tribunal. Only a sum of Rs. 25,000/- is awarded towards disfigurement. A lump sum will have to be awarded under the head ''disfigurement and loss of marriage prospects.'' Awarding Rs. 1,00,000/- under the said head would meet the ends of justice. Thus the appellant in M.F.A. 8571/09-Shreekanth (claimant in MVC. 9176/07) is entitled to enhanced compensation as follows:
He is entitled to interest at the rate of 9% p.a. on the enhanced compensation from the date of petition till realization minus Rs. 50,000/- awarded towards future medical expenses. This would be the just and proper compensation within the purview of Sections 166 and 168 of the Motor Vehicles Act.
In the result, I pass the following order:
ORDER
I. M.F.A. Nos. 8175/09 and 8176/09 filed by the insurer are dismissed.
II. MFA. Cross Objections 99/13 filed by the claimant, viz., Sunil (claimant in MVC. 9175/07) is partly allowed, enhancing compensation to Rs. 3,48,000/- as against Rs. 2,12,000/- as determined by the Tribunal. He is entitled to interest at 9% p.a. on the enhanced compensation of Rs. 1,36,000/- (rupees one lakh thirty six thousand only) from the date of petition till realization.
III. MFA. Cross Objections 100/13 filed by the claimant, viz., Shreekanth (claimant in MVC. 9176/07) is partly allowed, enhancing compensation to Rs. 11,26,000/- as against Rs. 8,25,330/- as determined by the Tribunal. He is entitled to interest at 9% p.a. on the enhanced compensation of Rs. 3,00,700/- minus Rs. 50,000/-, i.e. Rs. 2,50,700/- (rupees two lakhs fifty thousand seven hundred only) from the date of petition till realization.
IV. He is entitled to interest at the rate of 9% p.a. on the enhanced compensation from the date of petition till realization minus Rs. 50,000/- awarded towards future medical expenses. This would be the just and proper compensation within the purview of Sections 166 and 168 of the Motor Vehicles Act.
V. In the event of deposit, a sum of Rs. 2,00,000/- (Two Lakhs only) shall be released to Sunil claimant in MVC No. 9175/07 and Rs. 7,00,000/- (Seven Lakhs only) to Mr. Shreekanth the claimant in MVC No. 9176/07. Remaining amount of both of them shall be deposited in any Nationalized Bank of their choice for a minimum period of Five (5) years with liberty to draw accused interest from time to time.
Parties to bear their own costs.