Son of Gopareppa, 2 SCCH-18 MVC 2922/2021 Residing at Bommanal Village, Gunda Post, Sindhanur Taluk, Raichur District.

2.HDFC ERGO General Insurance Company, No.14, HM Geneva House, Cunningham Road, Bengaluru-560 052.

(By Pleader Smt.Nagarathna P.) *J U D G M E N T* This judgment is emerged consequent upon the petition filed by the petitioner U/S 166 of M.V. Act , claiming compensation of Rs.50,00,000/- on account of injuries sustained by him, in a road traffic accident.

*FACTS OF THE CASE IN NUTSHELL*

2. Facts leading to the case of the petitioner forthcoming in the petition that, on 9.11.2019 at about 3.00 a.m. the petitioner being the pedestrian 3 SCCH-18 MVC 2922/2021 proceeding from Bommanal Hatti, towards Mahampur to attend Gangappayya's fair at Mahampur village, on Bommanal Mahampur road, while so proceeding Bommanal Hatti Village, Sindhanur Taluk, Raichur District, at that time the rider of the motor cycle bearing registration No.KA-37-R-3750, came with high speed in a rash and negligent manner and dashed against the petitioner. Due to the said impact, the petitioner had sustained grievous injuries.

3. It is further stated that, immediately the petitioner was shifted to Government Hospital, Tavaragera and after first aid treatment, he was shifted to Government Hospital, Lingasugur, Then he was shifted to RIMS Raichur, wherein, he was treated as an inpatient. The petitioner had spent 4 SCCH-18 MVC 2922/2021 huge amount towards medicines, attendant charges, food and nourishment.

4. It is also stated in the petition that, prior to the accident the petitioner was hale and healthy, aged about 52 years, doing agriculture and earning a sum of Rs.40,000/- per month. Further, he used to spend the said amount, for the maintenance of his family members. After the accident, he could not do any work due to his severe injuries.

5. It is alleged in the petition that, the accident was occurred due to the rash and negligent act of the rider of the motor cycle bearing No.KA- 37-R-3750.1 In this regard, case was registered against the rider by the jurisdictional Electronic City Traffic Police as per Crime No.293/2019. As such, the respondent No.1, being the owner and the respondent No.2 being the insurance company of the 5 SCCH-18 MVC 2922/2021 offending vehicle are jointly and severally liable to pay compensation to the petitioner. Hence, the petitioner has filed the instant petition, seeking compensation.

6. After registration of the case, as usual notices were issued to the respondents. In response to the notices, the respondent No.1 has not appeared before the court, remained absent, placed exparte. On the other hand, the respondent No.2 has appeared through its counsel and filed the written statement, in answer to the case of the petitioner.

7. In the written statement of the respondent No.2 company not seriously disputed the accident, and the injuries sustained by the petitioner. But, strongly denied the allegation of actionable negligence on the part of the rider of the offending vehicle. It is the contention of the respondent No.2 that, the respondent has issued certificate of 6 SCCH-18 MVC 2922/2021 insurance infavour of the respondent No.1 to the motor cycle bearing No.KA-37-F-3750, the same was in force as on the date of accident. It is the main contention of the respondent that, the accident had occurred due to the sole negligence on the part of the petitioner and not on the part of the rider of the motor cycle. It is the contention of the respondent that, the rider of the motor cycle had no valid and effective driving license to drive the said vehicle. Ultimately, stated that, the compensation claimed by the petitioner, is highly excessive, exorbitant and without any basis. With all these main grounds, prayed to dismiss the petition with cost.

8. On the basis of rival pleadings of both the parties, for final determination of the case, following issues are framed;

1) Whether the petitioner proves that, he had sustained grievous injuries in a motor vehicle accident, that was taken place on 9.11.2019 at about 3.00 a.m. on Bommanal Hatti Mahampur road, near Bommanal Hatti-Sindhanur Taluk, Raichur District, due to the rash and negligent riding of the rider of the motor cycle bearing registration No.KA-37-R-3750 in an actionable negligence ?

2) Whether the petitioner is entitled for compensation as prayed for? If so, at what rate ? from whom?

3) What order or award?

9. In order to substantiate the case of the petitioner by name Shri Somana Gouda during the course of evidence, placed his affidavit evidence, in lieu of examination-in-chief, who examined as PW1 in the case on hand. At the time of his evidence, 18 8 SCCH-18 MVC 2922/2021 documentary evidence got marked as Ex.P1 to Ex.P18. In addition to his evidence, had placed the evidence of Dr.Avinash Parthasarathy as PW2. At the time of his evidence, 4 documentary evidence got marked as Ex.P19 to Ex.P22. Apart from their evidence, placed the evidence of an eye witness by name Mudiyappa who examined as PW3. At the time of his evidence placed one document marked at Ex.P23, for consideration.

10. On the other hand, the respondent No.2 had examined Senior Manager by name Suresh G. as RW1. At the time of his evidence placed 6 documentary evidence marked as Ex.R1 to Ex.R6. Further the respondent No.2 had placed the evidence of the Dr.Kaveri Shavi as RW2. At the time of her evidence placed one document got marked as 9 SCCH-18 MVC 2922/2021 Ex.R7. After conclusion of the trial, matter was set down for arguments.

11. Heard the argument of the learned counsel for the petitioner. The counsel for the respondent No.2 had filed the written argument. At the time of argument, the learned counsel for the petitioner has relied on the following authorities along with order sheet CC No.133/2021, wherein the driver of the offending vehicle by name Ramesh pleaded guilty before the criminal court and deposited the fine amount as per the conviction order of the said court.

12. It is relevant to note herein the authorities, relied on by the learned counsel for the petitioner.

1.MFA No.5518/2013 (MVC) Shri Suresh C. Vs. Bajaj Allianz General Insurance Co. Ltd., 2) MFA No.7493/2007 (MV) between Bajaj Allianz Gen. Ins. Co. Ltd., Vs. Smt.Lakhmamma & Others 3) MFA 1867/2003 (MV) beween National Insurance Co. Ltd., Vs.Ajju & Another 4) 10 SCCH-18 MVC 2922/2021 AIR 1980 Supreme Court 1354 between N.K.V. Bros. Private Ltd., Vs. M.Karumai Ammal & Others 5) (2018) 3 Supreme Court Cases 2008 between Pappu & Others Vs. Vinod Kumar Lamba & Another 6) (2018) 9 Supreme Court Cases 650 between Shamanna & Another Vs. Divisional Manager, Oriental Insurance Co. Ltd., & Others

7) AIR 2019 Supreme Court 3128 between Parminder Singh Vs. New India Assurance Co. Ltd., & Others 8)AIR 2011 Supreme Court 1785 between Nagarajappa Vs. Divisional Manager, Oriental Insurance Co. Ltd. , 9)(2011) 1 Supreme Court Cases 343 between Raj Kumar Vs. Ajay Kumar & Another 10) (2011) 1 Supreme Court cases 356 between Laxmi Ram Pawar Vs. Sitabai Balu Dhotre and Another 11) 2004 ACJ 1109 between K.Narasimha Murthy Vs. Manager, Oriental Insurance Co. Ltd. & Another 12) 2007 ACJ 13 between New India Assurance Co. Ltd.,Vs. Papamma & Another 13) 2002 ACJ 1743 between R.Venkatesh Vs.P.Saravanan & Others 14) (2020)4 Supreme Court Cases 413 15) MFA No.103807/2016 c/w 103835/2016 11 SCCH-18 MVC 2922/2021

13. With due respect, I have gone through the propositions laid down in the several authorities relied on by the learned counsel for the petitioner, on the point of appreciation of the medical evidence, and it was observed that, the entry in the Medico Legal Register, would not be final and conclusive. When the criminal case registered in respect of the accident, which attained the finality would be of more evidentiary value, than the entry made in the MLC register. When the entry has been made by mistake, due to the commission of the author of the said document in the absence of the doctor results the miscarriage of justice. It was also observed that, if really the vehicle was not involved in the accident, if false case has been lodged in collusion with the claimants, it was for the insurance company to challenge the same, to quash the charge sheet and to direct the police to investigate properly and to file appropriate report, for having lodged a false case when there was no accident and vehicle in question had not been involved. If the police, after thorough investigation found that, the vehicle in question is involved in the accident, then it cannot be presumed negatively about non- involvement of the vehicle. On the other hand, with respect to the D.L. is concerned, it was observed that, onus would shifts, 12 SCCH-18 MVC 2922/2021 on the insurance company, only after owner of the offending vehicle pleads and proves basic facts within his knowledge that, the driver of the offending vehicle was authorized by him, to drive vehicle and was having a valid driving license at relevant point of time. Duty of insurer to satisfy the award to protect the third party victim of the Motor Vehicles Accident principle of pay and recover has to be followed, under beneficial legislation. Failure of owners and drivers of the offending vehicle, to appear before the court insurance company, is not liable to pay compensation, however, directions issued to insurance company to pay compensation amount to the claimant and recovery from owners and drivers of the offending vehicle is maintainable. Another point discussed about the appreciation of the medical evidence observing that, disability assessed by the doctor with respect to left arm ought to be considered and not disability assessed of whole body. Further, observed in connection with the assessment of loss of future earnings, on account of permanent disability and mode of assessment by considering the types of disability. Added to this, observed that, Tribunal should not mechanically apply percentage of permanent physical disability as percentage of economic loss or loss of earning capacity, but must assess functional disability. Injured person 13 SCCH-18 MVC 2922/2021 is compensated for loss which he incurs as a result of physical injury and not for physical injury itself. Loss of actual earning capacity depends upon nature of job or avocation. Further present value of loss of claimant's future earning capacity is admissible. The compensation should be substantial to the injured for deprivation suffered by injured throughout life. Court must take care to give full fare compensation for that which he has suffered. Tribunal should always remember that, the damages in all the cases should enable tortfeasor to amply atone for his mis-adventure. Further by quoting the authority of Raj Kumar Vs Ajay Kumar and another discussed several factors.

14. At the time of arguments, the counsel for the respondent No.2 has relied the following authorities: 1) Civil Appeal No.3171/2009 between Gourabai & Others Vs. Dr.Arijit Pasayat J. 2) MFA No.8488/2004 between Veerappa & Another Vs. Siddappa & Another 3) MFA No.201689/2016 between Mahadevi & Others Vs. Shivapura & Another 4) MFA No.4407/2020 C/W 4081/2021 between Branch Manager, ICICI Lombard General Insurance Co. Ltd., Vs. Kavitha & Others 5) MFA 14 SCCH-18 MVC 2922/2021 6154/2019 between Hemalatha @ Hema @ Hemavathi & Others Vs. Bajaj Allianz General Insurance Co. Ltd., & Another 6) MFA 3288/2013 C/W 3287 of 2013 between M/s Shriram General Insurance Co. Ltd., Vs. Sunitha @ Nagaveni & Another

15. With due respect, I have gone through the propositions laid down in the authorities relied on by the learned counsel for the respondent No.2, wherein it was discussed that, the Tribunal has a duty to look into the medical documents about the manner of the accident and to hold the validity of the investigation conducted is proper or not. Since the hospital authority is not taking signature on the blank paper. When the injured has given statement consciously to the hospital authority, about the manner of the accident and same has to be looked into. Further, discussed that, fraud and justice never dwell together and thee is not statutory requirement to the insurance company to challenge the chargesheet submitted about the accident. Further, observed that, the entries made in the medical records, is contrary to the evidence on record is liable to be dismissed. On the other hand, in connection with the DL. is concerned it was observed that, when there is a fundamental breach of policy 15 SCCH-18 MVC 2922/2021 conditions within the meaning of Section 249 (2) (a) (ii) of the MV. Act, it is justified in exonerating the insurer on the ground that, there is a fundamental breach of policy conditions and owner to allow is liable to pay.

16. On appreciation of the evidence available on record, my findings to the aforesaid issues are as follows:

17. It is the specific case of the petitioner that, due to the actionable negligence on the part of the rider of the offending vehicle, motor cycle bearing registration No.KA-37-R-3750, alleged accident had taken place. Consequently, the petitioner had sustained grievous injuries. 16 SCCH-18 MVC 2922/2021

18. On the other hand, the respondent No.1 being the owner of the offending vehicle remained absent and placed exparte, without challenging the case of the petitioner. The respondent No.2 being the insurance company, strongly denied the involvement of the offending vehicle, and the manner of accident, and also highlighted the recitals of the medical documents, and vehemently contended that, there was no any actionable negligence on the part of the driver of the offending vehicle to cause accident and its consequent, as the alleged accident had taken place due to the sole negligence on the part of the petitioner. On the basis of rival contentions of both the parities, in order to find out the truth, for the final determination of the above point, it is necessary to appreciate in detail, about the evidence given by both the parties in order to come to the proper conclusion. Since the trial 17 SCCH-18 MVC 2922/2021 is the voyage of justice, wherein the truth is the quest.

19. On going through the above issue, burden is on the petitioner Somanangowda to place cogent and convincing evidence, to the satisfaction of the court. On the other hand, onus shifts on the respondent company to prove all the defenses forthcoming in the written statement by adducing evidence to shaken the case of the petitioner. Hence, let me to discuss the evidence available on record.

20. The petitioner herein, to discharge the burden lies on him, relied on the affidavit evidence wherein, he reiterated the main petition averments to the effect that, on the fateful day of the accident he being the pedestrian while proceeding in the scene of occurrence, the driver of the offending vehicle, came and caused accident due to his actionable negligence, which caused grievous 18 SCCH-18 MVC 2922/2021 injuries to him. Among the documents placed by this petitioner, Ex.P1 to Ex.P5, Ex.P10, Ex.P22 are the material documents, in support of the above issue. In addition to the evidence of PW1, evidence of PW3 Mudiyappa son of Chatrappa had placed on record. The said eyewitness, in his evidence, stated that, he had witnessed the accident, which was caused due to the reckless, rash and negligent riding of the offending vehicle, in a high speed, consequently, the petitioner had sustained fractures and multiple injuries all over the body. In support of his evidence produced Ex.P23, which the statement of this witness for consideration. The remaining documents and the evidence of the PW2 are to be considered in detail, at the time of discussion of issue No.2.

21. Per contra, to prove all the defenses of the respondent company had placed the evidence of 19 SCCH-18 MVC 2922/2021 Senior Manager by name Suresh G. The said witness in his affidavit evidence, strongly contended that, as per the medical records, history of accident has been mentioned as self fall from the motor cycle under the infulence of alcohol. Further, it is mentioned in he medical records that, the petitioner is a person of chronic alcoholic. But in order to suppress the fact, the petitioner has admitted to the Sanjaygandhi Hospital, Bengaluru and given a history to suit his claim in collusion with the concerned officials. Another point highlighted that, as on the date of the accident, the rider of the offending vehicle had no valid driving license, when his driving license was called for, by issuing notice, failed to produce the same. As such, due to the violation of terms and conditions of the policy, the insurance company is not liable to pay any compensation. In support of the evidence of RW1 20 SCCH-18 MVC 2922/2021 had produced insurance policy, copy of the legal notice postal receipt, acknowledgement card notice dated 5.2.2022 and returned postal cover as per Ex.R1 to Ex.R6.

22. In addition to this, placed the evidence of Dr.KaveriShavi as RW2. The said witness had placed the outpatient record pertaining to Thavaregere hospital as per Ex.R7. Along with the examination-in-chief evidence of all the witnesses as discussed above, it is relevant to discuss the documentary evidence in order to find out the truth, whether the affidavit evidence and the documentary evidence produced for consideration by both the parties to the petition, are in consonance with each other, in order to prove the above fact in issue.

23. Firstly, on going through the documentary evidence placed by the petitioner, Ex.P1 first information report reveals that, alleged accident had 21 SCCH-18 MVC 2922/2021 taken place on 9.11.2019, first information in this regard was given by the petitioner himself, on the same day of the accident, against the rider of the offending vehicle Hero Honda Spelendor bearing registration No.KA-37-R-3750 allegiant that, he had committed the offences punishable under section 279 , 337 and 338 of IPC. In the recitals of the complaint marked at Ex.P2, there is a clear narration from the side of the complaint, about the manner of accident, and involvement of the offending vehicle in the accident. According to him, firstly he approached Thavarekere hospital, subsequently for further treatment, he had referred to go to Koppal Government Hospital, but he was admitted an inpatient in Raichur RIMS Hospital.

24. Further, it is to be noted that, there is a clear mention that, the rider of the offending vehicle 22 SCCH-18 MVC 2922/2021 by name Ramesh had committed the accident, consequently, he was also, sustained injuries and he had been to the Kustagi Hospital for treatment. The statement of the injured was taken in the hospital. As such, no suspicious circumstances create by looking into the recitals of the Ex.P1 & Ex.P2. As per the Ex.P2, the statement of the petitioner was taken in the RIMS hospital, by one H.C. Nagaraj No.353. The rider of the offending vehicle has not made an effort to give statement against the petitioner, while he was taking treatment in the hospital, if at all he was responsible for accident. This silence of the rider of the offending vehicle and in the absence of counter complaint as well as the absence of the effort from him or his family members to challenge the recitals of the Ex.P1 & Ex.P2, well in time will not create confidence to believe all the defenses of the respondent company 23 SCCH-18 MVC 2922/2021 about non-involvement of the offending vehicle. These two documents remained unshaken by the other side.

25. Added to this, on going through the recitals of spot mahazar, marked at Ex.P3, spot sketch Ex.P10, seizure mahazar Ex.P11 reflect that, after setting the criminal law in motion against the rider of the offending vehicle, the investigation officer had visited the scene of occurrence and conducted mahazar process by executing spot sketch in the presence of witnesses, on the next date of the accident, and on the same day, the offending vehicle was seized. The dates mentioned in these 3 documents on comparing with the dates mentioned in the Ex.P1 & Ex.P2, will create confidence in connection the assertion of the petitioner about the accident. In the Ex.P11 there is a clear mention about the involvement of the offending vehicle in the 24 SCCH-18 MVC 2922/2021 accident. If at all the vehicle was not involved in the accident, why the owner or the rider of the offending vehicle, were not made an effort to rise objection while conducting the mahazar process and executing the spot sketch.

26. Another material document wound certificate marked at Ex.P4 issued from the hospital authority reveals that, on 9.11.2019, the petitioner was subjected to examination, on the history of road traffic accident, fully noted in the Ex.P4, and as per the medical document, he had sustained grievous injuries as well as simple injuries. There is no whisper in the said document about the allegation of the consumption of alcohol as forthcoming in the evidence of the respondent company.

27. It is pertinent to note that, the petitioner herein, has not placed the IMV report for consideration, along with police notice and reply to 25 SCCH-18 MVC 2922/2021 the police notice. But available records clearly disclose about the involvement of the offending vehicle in the accident and to show that, due to mechanical defect of the offending vehicle or any other innate circumstances, no specific documentary evidence is available on record from the side of the respondents.

28. Ultimately, ongoing through the charge sheet submitted by the investigation officer, reveals that, due to the actionable negligence on the part of the rider of the offending vehicle, who had no DL at the time of accident, the petitioner had sustained injuries. As such, charge sheet has been filed against the rider of the offending vehicle by name Ramesh, son of Hanumappa on the allegation that, he had committed the offences punishable under section 279 , 337 and 338 of IPC and under Section 26 SCCH-18 MVC 2922/2021 3 R/W Section 181 of M.V. Act. This material document and the allegations forthcoming in the column No.17 of the said document remained unshaken by the other side.

29. Apart from this, in the evidence of RW2, by placing Ex.R7, at the time of his cross examination answered that, the petitioner gave history of accident, that while he was proceeding in the road towards the scene of occurrence had sustained injuries consequent upon the accident caused by the rider of the bike. The said statement, remained unshaken. In this regard, not made an effort to falsify the said statement, by imposing some more material questions for appreciation.

30. On going through the cross-examination of PW1, it is evident that, he had specifically denied the suggestion of other side that, he himself was responsible for accident, as on the date of the 27 SCCH-18 MVC 2922/2021 accident, by consuming alcohol, he was proceeding in the road, and due to his mistake, the alleged accident had taken place and there was no involvement of the offending vehicle in the accident. Further in the same para No.3, at page No.5, clearly stated that, alleged bike was responsible for the accident. Except this, no other material points culled out from the mouth of this witness to disbelieve the case of the petitioner, against the rider of the offending vehicle. In connection with the suggestion of the consumption of the alcohol is concerned, no cogent evidence placed by the respondent company, to show that, the injured was consumed alcohol, at the time of the accident. In number of cases, our own Honourable High Court of Karnataka opined that, mere contention in connection with the consumption of alcohol from injured, does not disentitle his claim, in motor accident. 28 SCCH-18 MVC 2922/2021

31. At the time of cross-examination of PW3, admitted that, himself and the petitioner are belonging to the same village and he gave oral statement before the police, about the accident, as there is no any written statement from him and admitted that, there was no impediment to him, to give complaint about the accident. Further, he admitted that, he was not present at the time of mahazar process. In para No.2, he stated that, he was shifted the petitioner to Tavaregere Government hospital, Khustagi. But he has not given any information about the accident at that time, but denied the suggestion that, he was not present in the accident spot at the time of accident. According to him, about the accident, wife of the petitioner had given information about the accident. Further, he denied the suggestion that, as per the medical documents belong to RIMS Hospital, Raichur, the 29 SCCH-18 MVC 2922/2021 petitioner by consuming alcohol, himself became responsible for the accident. Apart from this, denied the suggestion that, only to help the petitioner, he is giving false evidence before the court.

32. On the other hand, at the time of cross- examination of RW1, at page No.2, admitted that, in the wound certificate of Thavarekere, there is no whisper that, petitioner had fall from bike and further not denied the suggestion that, final report has been submitted against the rider of the offending vheicle. Added to this, in page No.4 para No.3 of the cross-examination, not specifically denied the suggestion that, as per the records of the Sanjaygandhi Hospital, history of accident was mentioned as 'hit by two wheeler.' Except these questions and suggestions, no material points forthcoming in the evidence of RW1, on appreciation of his evidence in toto, to believe all the defenses of 30 SCCH-18 MVC 2922/2021 the respondent company. Even at the time of cross- examination of RW2, admitted the suggestion of the learned counsel for the petitioner that, as per the statement of SomanaGowda, while he was walking on the road in the scene of occurrence, bike came and dashed to him. Except these, nothing is available on record for consideration.

33. It is relevant to note that, when the respondent No.2 is strongly disputing about the involvement of the offending vehicle, and history of accident by virtue of some medical documents, it is apt to discuss of the material medical documents for better appreciation. Firstly, ongoing through the wound certificate marked at Ex.P4 reveals that, immediately after the accident, on the same day, the petitioner had been to Thavagere hospital. In the recitals of Ex.P4, it is noted that "on the history of RTA, the petitioner had sustained grievous as well as 31 SCCH-18 MVC 2922/2021 simple injuries". Ex.P12 & Ex.P13, 4 photos with CD discloses about the nature of the injuries sustained by the petitioner consequent upon the accident.

34. Added to this, on going through the Ex.P14 letter of RIMS hospital reveals that, on 9.11.2019, petitioner was referred to higher hospital for further treatment. Ex.P15 outpatient record of Raichur Institute of Medical Science Teaching speaks that on 9.11.2019 registration was done. In the said document history of the accident has been mentioned as fall from bike. Ex.P16 reveals about the nature of the injuries sustained by the petitioner but as per the recitals of the said document, the petitioner was not riding the vehicle, as on the date of the accident, as he was proceeding as a pedestrian. In the last page of the said document also, fall from bike has been mentioned. On 32 SCCH-18 MVC 2922/2021 evaluation of the entire medical documents, along with the police papers, and on going through the Ex.P18 referral letter, I am of the view that, to come to the conclusion that, there is a fraud with respect to the case of the petitioner, no grounds made out. Further, on appreciation of inpatient records, and IP document marked at Ex.P21, goes to show that, though some of the recitals forthcoming in the medical documents stating that there was a self fall and about alcoholic condition, to show that, the petitioner was riding the two wheeler, no whisper in the spot mahazar as well as seizure mahazar in this regard. Even, the owner and driver of the offending vehicle were kept quite, without highlighting all these points, till filing the final report to prove the innocence of the rider of the offending vehicle.

35. In the light of the evidence placed on record by the petitioner, in the case on hand, by way 33 SCCH-18 MVC 2922/2021 of affidavit and the documentary evidence, speak that, the alleged accident was occurred, due to the negligence on the part of the rider of the offending vehicle, motor cycle bearing registration No.KA- 37-R-3750. Hence, without making much discussion on the point of the rash and negligent driving of the rider of the offending vehicle, I am answering the Issue No.1, is in the Affirmative.

ISSUE NO.2 :

36. This issue is with respect to the entitlement of reliefs claimed by the petitioner. The petitioner through this petition, claiming compensation of Rs.50,00,000/- on account of the injuries sustained by him in the accident, under different heads.

37. Before appreciation of the evidence placed by the petitioner about the injuries sustained 34 SCCH-18 MVC 2922/2021 by him, in the accident and its consequences, it is apt to note herein, the preposition laid down in the following land mark judgment, while appreciating the injury cases in Motor Vehicle Act .

Civil Appeal No.8981/2010 D.D. 18.10.2010 Rajkumar V/s Ajay Kumar & Another.

38. In connection with the injuries sustained by the petitioner, in the accident, has produced wound certificate marked as Ex.P4. The said document discloses that, he had sustained the following injury:-

39. As per the opinion of the doctor, the injury No.1,2,6,7 & 8 are grievous in nature and injury 36 SCCH-18 MVC 2922/2021 No.3, 4, & 5 are simple in nature. Further the petitioner has produced, medical bills, advance receipts, x-rays, photographs, CD letter, letter issued by RIMS Hospital, outpatient record, inpatient record, scan report, referral letter, as per Ex.P7 to Ex.P9 & Ex.P12 & Ex.P18. In addition to his evidence placed the evidence of Dr.Avinash Parthasarathy as PW2. The said witness had placed disability assessment proforma, OP slip, IP document and x-rays as per Ex.P19 to Ex.P22. On going through the Ex.P21 inpatient record of Sanjaygandhi Trauma & Orthopaedics, Bengaluru reveals that the petitioner was admitted on 6.12.2019 and discharged on 3.1.2020. For having taken note of the nature of the injuries sustained by the petitioner, and his sufferings at the time of taking treatment, in connection with the aforesaid grievous injuries, I am of the view that the 37 SCCH-18 MVC 2922/2021 petitioner is entitled for compensation of Rs.1,50,000/- towards pain and sufferings.

40. Another point to be discussed herein, about the loss of income during laid up period and rest period is concerned, on going through the main petition, his avocation has been mentioned as agriculturist and was getting an income of Rs.40,000/- per month. But, there is no iota of documents to show the income of the petitioner as Rs.40,000/- per month. In such a situation, notional income has to be taken as contemplated under law.

41. On the other hand, on going through the entire medical documents placed by the petitioner along with photos and CD marked at Ex.P12 & Ex.P13 respectively, and also on going through the narration made by the PW2 about the nature of the injuries sustained by the petitioner and also mode of treatment taken by him, I am of the view that, the 38 SCCH-18 MVC 2922/2021 petitioner could have taken treatment as an inpatient as well as an outpatient. As per Ex.P21 inpatient record of Sanjaygandhi Trauma & Orthopaedics, Bengaluru reveals that the petitioner was admitted on 6.12.2019 and discharged on 3.1.2020. On going through the nature of the injuries sustained by him, reveal that, he could have taken treatment as an inpatient as well as an outpatient at least for a period of six months. During this period, on going through the nature of his occupation forthcoming in the main petition averments, as well as in the evidence of PW1, he was not in a position to do the mason work. Hence, I am of the view that, he is entitled for compensation of Rs.84,000/- towards loss of income during the laid up period and rest period.

42. The petitioner herein, in connection with his treatment expenses, at the time of his evidence, 39 SCCH-18 MVC 2922/2021 had placed medical bills as per Ex.P7, to the extent of Rs.7,368/- along with advance receipts as per Ex.P8. Other side not disputed the medical bills. Hence, the petitioner is entitled for the compensation of Rs.7,368/- towards medical expenses.

43. The petitioner herein, as per the medical records, had sustained grievous injuries. As per the records, for his injuries, he took treatment in Government Hospital, Raichur and later at Sanjaygandhi Hospital, Bengaluru. As per Ex.P21 petitioner was admitted on 6.12.2019 and discharged on 3.1.2020. During the period of treatment of treatment, the petitioner could have taken the assistance of the attendant, and he could have spent some amount towards travelling, food and nourishment, as an inpatient as well as an outpatient. Hence, the petitioner is entitled for 40 SCCH-18 MVC 2922/2021 compensation of Rs.50,000/- towards attendant charges, food, and nourishment and conveyance charges.

44. Another material point of loss of future income is concerned, the petitioner herein, asserting that, he had sustained permanent disability, consequent upon the injuries sustained by him. In order to prove the same, the petitioner has relied on his evidence, along with the wound certificate. In the evidence of the PW1, reiterated the same thing forthcoming in the main petition. As already discussed above, wound certificate placed by him as per Ex.P4, goes to show that, he had sustained the injuries, fully mentioned in the wound certificate, which shows the grievous nature of the injuries. Apart from this, the petitioner had placed the evidence of the doctor by name Dr.Avinash Parthasarathy as PW2.

45. In the evidence of this material witness, PW3, Dr.Avinashparthasarathy deposed that, on the history of RTA, the petitioner had sustained crush injury left lower limb and distal radius fracture right wrist. In this regard initially, he underwent external fixator application and debridement and later on admission noticed left both bone leg fracture with LRS in situ and right malunited distal radius fracture. In this regard, he underwent above knee amputation on left lower limb on 21.12.2019. Further, procedure for right ulna with ex-fix for radius was done on 25.12.2019.and discharged on 3.1.2020, subsequently he had taken regular treatment in the hospital of the PW2.

46. Further, the witness deposed that, on 15.12.2022 on his examination found that, he has assisted antalgic gate in his left lower limb, ARC of movement hip flexion, rotation and abduction restricted by 30 degree each difficulty in walking climbing stairs squatting, kneeling and sitting cross-legged, tenderness 42 SCCH-18 MVC 2922/2021 over mid 1/3rd femur/amputated stump, tenderness over right wrist. Arc of movement of right wrist dorsi palmal flexion restricted by 20 degree and radial, ulnar deviation restricted by 10 degree, difficulty in in wearing clothes, drinking glass of water.

47. Apart from this, as per x-ray dated 15.12.2022 shown left A/k amputated stump and right right mal united distal radius with excised lower end of ulna. On the basis of evaluation of permanent physical impairment in the left lower limb and right lower limb along with assessment of above knee up to lower 1/3rd of thigh, additional points left lower limb, right upper limb along with co-ordinated activities came to the conclusion that, whole body disability of the petitioner is =PPI left LL/2 + PPI Right UL/3 =90/2+26/3=54%.

48. Apart from this witness noted that, the petitioner had pain in left thigh and restricted ROM in 43 SCCH-18 MVC 2922/2021 the left hip joint, along with amputated A/K stump. He also has pain restricted ROM in right wrist causing difficulty in doing his routine activities. He has permanent physical impairment in his left lower limb and right upper limb contributing to whole body disability of 54% as per the clinical and radiological assessment as well as notification of the year 2018. He has recommended above knee total contact suction prosthesis for him as it would improve his quality of life. The estimated cost of the same would be approximately Rs.75,000/- in support of the evidence of said witness, had placed disability assessment proforma, OP slip, IP document, and two x-rays as per Ex.P19 to Ex.P22.

49. At the time of cross-examination of this witness, admitted tha,t the petitioner had taken treatment in his hospital but he has not given initial 44 SCCH-18 MVC 2922/2021 treatment. As per the records, the petitioner had taken the treatment at first in RIMS hospital, but not received any reference letter from the said hospital and no mention in this regard in the case sheet. Further, he did not know who brought the petitioner to the hospital. He admitted that, MLC register has not been executed in his hospital. Further, admitted that, in the Ex.P.15, Ex.P.16 & Ex.P18 history of accident, has been mentioned as fall from bike. In their hospital the person who accompanied the petitioner had given history of accident. In addition to this, admitted that in the Ex.P21, there is no mention about the history of accident since MLC has not been executed in their hospital. Further in page No.6 para No.3 admitted that, in their hospital, history of accident has been mentioned without looking into the history mentioned in the earlier medical documents. Added 45 SCCH-18 MVC 2922/2021 to this, he has not denied the recitals of Ex.P15 about the whisper of alcohol withdrawal symptoms and admitted that, if a person is an alcoholic, there may be a chances of causing hardship to unite the fracture. Apart from this, spoken that, leg was amputed after 45 days of the accident.

50. Over all appreciation of the evidence of PW2, along with the nature of the injuries sustained by the petitioner, by looking in to the mode of treatment taken by him, and also by looking into the entire medical documents, I am of the view that, ongoing though the nature of the injuries sustained by the petitioner, in the light of photos and CD placed on record, definitely the petitioner not only suffers hardship in connection his physical disability, but also there will be a functional disability, being an agriculturist, who requires both legs to do his work towards, daily activities, as well 46 SCCH-18 MVC 2922/2021 as for his avocation. By taking into consideration of all these aspects, is it apt to taken the percentage of disability with respect to whole body of the petitioner, as 50% instead of 54%, the same will meet the ends of justice.

51. In connection with the age of the petitioner is concerned, on going through the cause title of the petition reveals that, his age was mentioned as 52 years. As per the Aadhar card marked at Ex.P6, the date of birth of the petitioner was mentioned as 1.1.1967. The accident occurred on 9.11.2019. The age has been mentioned as 52 years. If the said date is taken into consideration as on the date of accident the petitioner was aged about 52 years. Hence, it is apt to take the age of the petitioner as 52 years as on the date of the accident. To the said age 47 SCCH-18 MVC 2922/2021 as per Sarla Verma case, multiplier '11' is to be taken into consideration.

52. Next factual aspect of the income of the petitioner is concerned, as per the assertion of the petitioner forthcoming in the main petition, prior to the accident he was working as a agriculturist and used to earn Rs.40,000/- per month. In support of his avocation, and definite income per month, he has not placed any iota of documents. In such a situation, as per law, notional income has to be taken into consideration.

53. In this regard, it is relevant to discuss the following points. Firstly in MFA No.7404/2014 between Smt.Mariyamma and others Vs. Shri Suyambulingam and another , wherein, it is observed that, "minimum wages prescribed under the Minimum Wages Act may be considered as notional income, when there is no specific proof of income." 48 SCCH-18 MVC 2922/2021 At the same time, it is relevant to note the authority reported in, 2022 (1) KCCR 952 (DB) between Smt.Sridevi and Another Vs. Ramesh and Another . In this case it was observed that, 'the Tribunal should have taken into consideration of the quantum worked out by the Karnataka Legal Services Authority while considering the notional income.' Hence, I am of the view that, it is apt to follow the table of the Legal Services Authority, the same will meet the ends of justice.

54. At the same time, it is relevant to note that, said notional income has to be taken judiciously, by taking into consideration of the year of the accident. Hence, by keeping in mind about the year of the institution of this case, and also, as per the notional income chart, I am of the view that, it is apt to take the notional income of the petitioner as Rs.14,000/- for the year 2019.

55. In the light of my detailed discussions held above, no doubt injuries sustained by the petitioner, definitely come in the way of his future, to do his daily routine work, as well as to do his work as a an agriculturist. To do the said work, having both legs is important. Hence, the petitioner herein, is entitled for compensation under loss of future income as follows:

56. Next factual aspect loss of amenities is concerned, on going to the injuries mentioned in the wound certificate and also as per the evidence of the doctor PW2, fully discussed above, I am of the view that, the injuries sustained by the petitioner is severe in nature. it is pertinent to note that, due to the accidental injuries, the petitioner's leg was amputed. Since both the legs are important organ 50 SCCH-18 MVC 2922/2021 in the human body, to lead normal life, losing one leg, definitely will cause great hardship to the injured. Due to the said disability, he will suffer not only physically, but also, psychological impact too will cause to him. Though no fault on his side, he has to suffer a lot before the society, in his middle age. By looking in to the photos placed by the petitioner also, reveals the genuineness of the problem of the petitioner. Another point to be noted that, he has to lead his future life along with the said permanent disability. By keeping in mind about the nature of the injuries, sustained by the petitioner, in the accident, and its consequences, and also by taking in to consideration of the age criteria and future of the petitioner, some liberal approach is needed, to consider the compensation of the petitioner, under this head. As such, the 51 SCCH-18 MVC 2922/2021 petitioner is entitled for Rs.1,00,000/- towards loss of amenities.

57. In connection with the future medication expenses is concerned, PW2 has stated that, the petitioner needs suction prosthesis, the approximate costs around Rs.75,000/-. But, either the PW2 or the petitioner has not placed any estimation in this regard. As such, by evaluation of all the medical records, along with the condition of the petitioner, consequent upon the accident, I am of the view that, the petitioner is entitle for compensation of Rs.75,000/- under the head of future medical expenses.

58. In view of my due discussions held above, on various aspects, the petitioner is entitled for compensation in toto, under the following heads: 52 SCCH-18 MVC 2922/2021

59. Accordingly, the petitioner is entitled for compensation of Rs.13,90,368/- (Rupees thirteen lakhs ninety thousand three hundred and sixty eight only), along with interest @ 6% per annum, as per the proposition laid down by the Honourable High court of Karnataka in MFA No.103557/2016, between Sri Ram General Insurance Company Limited V/S. Lakshmi And Others dated. 20.03.2018. And MFA No.30131/2019 53 SCCH-18 MVC 2922/2021 dated.12.5.2020, from the date of the petition, till the realization of the award amount.

60. As regards the liability is concerned, it is the assertion of the petitioner that, due to the actionable negligence on the part of the rider of the motor cycle bearing registration No.KA-37-R- 3750, alleged accident had taken place. The evidence given by the petitioner in connection with the issue No.1, remained unshaken.

61. On the other hand, the respondent company in the written statement, and in the evidence, strongly contended that, as on the date of the accident, the rider of the offending vehicle had no valid and effective driving license to drive the same. Thereby violated the terms and conditions of the insurance policy. As such the company is not liable to pay compensation to the petitioner. 54 SCCH-18 MVC 2922/2021

62. In this regard, on going through the charge sheet submitted by the investigation officer, relevant provision has been inserted stating that, at the time of accident the driver of the offending vehicle had no valid and effective driving license. To disprove the contents of the charge sheet, and to show that, the driver had valid D.L. no supportive evidence is available on record to impeach the recitals of Ex.P5.

63. Hence, it is crystal clear that, there is a clear violation of the terms and conditions of the policy. Accordingly, I am of the view that, the owner of the offending vehicle cannot escape from his liability to pay compensation determined by this court. In such a situation material question would arises to the effect that, who has to pay compensation to the aggrieved party, in the case on hand. In answer to this, it is relevant to note herein, the propositions laid down in the following cases. 55 SCCH-18 MVC 2922/2021

1). 2004 (3) SCC 297 between National Insurance Co. Ltd., Vs. Swaran Singh & Others In the aforesaid case, with due discussions the Hon'ble Apex Court came to the conclusion that, the insurer has satisfactorily proved its defence in accordance with the provision of Section 149(2) R/W Subsection 7, as interpreted by the court. And the Tribunal can direct the insurer liable to be reimbursed by the insured for the compensation amount, which has been compared to pay to the third party under the award of the Tribunal. In one word it is necessary to note that, through this authority, highlighted about the concept pay and recovery.

2) 2018 SCC 208 between Pappu & Others Vs. Vinod Kumar Lamba & Another In the aforesaid case it was observed that, where on adjudication of claim under the Act, the Tribunal arise at a conclusion that, the insurer has satisfactorily proved its defence in accordance with law with the provision of Section 149(2) R/W Sub- section 7 , the Tribunal can direct that, the insurer is liable to be reimbursed by the insured for the compensation and other amount which it has been compelled to pay to the third party under the award of the Tribunal. In the aforesaid case also, highlighted about the principle of pay and recovery. 56 SCCH-18 MVC 2922/2021

64. At the time of the argument, learned counsel for the respondent company, strongly contended that, when there was no D.L, principle of pay and recover is not applicable, by relying on the authority fully discussed above, while mentioning the citations placed by the respondent company. But, in the recent decisions of the Honourable Apex Court and Our own Honourble High court of Karnataka, held that, in cases where it is not proved that, the driver of the offending vehicle was not possessed valid driving license, the claims Tribunal will have to apply principles of pay and recover. This principle has been affirmed in subsequent judgments and is applicable in various situations, ensuring the rights of claimants to receive compensation are protected.

65. Over all appreciation of the prepositions laid down in the authorities placed by both the 57 SCCH-18 MVC 2922/2021 learned counsel, it is relevant to note that, the doctrine of pay and recover and the judgments of the Honourable Apex Court passed in this regard, as noted supra, has not been over ruled till today, and the propositions laid down in the said judgments, remained intact and the said judgments till today are in force. As such, the proposition laid down in the authority relied on by the learned counsel for the respondent company is not applicable to the present facts and circumstances of the case. Since, in the criminal court the rider of the offending vehicle, had admitted all the allegations made in the charge sheet, by pleading guilty.

66. Hence, to protect the interest of third party, it is apt in the case on hand, to follow the doctrine of pay and recover. Since as per Article 12 of the Constitution of India, company also comes under the concept of State. It is the duty of the State 58 SCCH-18 MVC 2922/2021 to protect the interest of the third party. Apart from this, as per the assertion of the petitioners, insurance policy was valid from 26.01.2019 to 25.01.2020. The accident had occurred on 19.11.2019. The said fact has not been denied by the respondent company, by placing the insurance policy as per Ex.R1.

67. In the light of my detailed discussion held above, I am of the view that, though the respondent No.1 being the owner of the offending vehicle, cannot escape from his liability to pay compensation to the petitioner, in view of violation of terms and conditions of the policy. But, to protect the interest of the third party, it is necessary to direct the respondent No.2-insurance company to pay compensation to the petitioner and thereafter to recover the same from the owner of the offending 59 SCCH-18 MVC 2922/2021 vehicle, through due process of law. Accordingly, I am answering the issue No.2 partly in the Affirmative.

ISSUE NO.3:

68. In view of my due discussions on issue Nos.1 & 2, I proceed to pass the following;

petitioners U/S 166 of MV Act is hereby partly allowed with costs.

hundred and sixty eight only), along with the interest at the rate of 6% per annum, from the date of petition till the date of deposit.

The respondent No.2 is liable to pay the compensation amount with interest @ 6% P.A. from the date of petition till the date of deposit, within two months from the date of this order. Thereafter recover the same from the owner of the offending vehicle/respondent No.1.

Expenses to be incurred for future medication shall not carry any interest.

After deposit of the compensation amount with interest, 40% is directed to be deposited in any Nationalized/Scheduled bank in F.D for a period of 3 years. And remaining 60% shall be released to the petitioner through due process of law.

Advocate fee is fixed at Rs.500/-.

Draw award accordingly.

(*Dictated to the stenographer through on-line, corrected by me and then pronounced in open court on this the 5th day of April 2024*).

(V.NAGAMANI) III ADDL.SMALL CAUSES JUDGE & ACMM, BANGALORE.* ANNEXURE List of witnesses examined on petitioner's side:

List of documents exhibited on petitioner's side:

List of witnesses examined on respondents' side:

List of documents exhibited on respondents' side: