PAREKH KINNER vs SRI V.VENKATESH SHARMA S/O.LATE VENKAPPA & Anr.

This appeal is filed by the claimant challenging the legality and correctness of the judgment and award dated 9th March 2011 made in MVC No.*5685/2009 passed by the Motor Accidents Claims Tribunal, Bangalore (hereinafter referred to as "the Tribunal" for short) dismissing the claim petition filed by him.

The appellant filed a claim petition contending that on 14-07-2009, while he was proceeding in his motorcycle bearing Registration No.KA-03/ET-5469, on Nagasandra Main Road, opposite to Eashwari Enterprises at about 11.30 a.m., the driver of the car bearing Registration No.KA-05/MB- 5943 drove the same in a rash and negligent manner and dashed against the motorcycle of the claimant. Due to the impact, the claimant fell down and sustained grievous injuries all over the body. Immediately after the accident, the claimant was shifted to Bharathi Nursing Home, after the first-aid, he was shifted to KIMS Hospital, Bangalore, wherein he had taken treatment as inpatient from 14-07-2009 to 20-07-2009. At the time of accident, he was a student studying B-Pharma course and also doing part-time job in medical stores earning Rs.3,000/- p.m. In view of the permanent disability he has suffered in the accident, he lost his educational prospects. Hence, sought for compensation of Rs.4,00,000/-.

In response to the notice issued by the Tribunal, though the first respondent owner of the offending Maruthi Car was served with notice, he remained unrepresented. The second respondent/insurance company filed written statement denying the entire averments made in the claim petition and also contended that due to the rash and negligent riding of the motorcycle, the accident had occurred. The claimant himself is responsible for the accident. Further, the insurer of the motorcycle has not been made party to the proceedings, hence the claim petition is bad for non-joinder of necessary parties. Further, the driver of the offending Maruthi car was not holding valid and effective driving license as on the date of accident. Hence sought for dismissal of the claim petition as against the insurance company.

On the basis of pleadings of the parties, the Tribunal framed necessary issues.

The claimant in order to prove his case got examined himself as P.W.1, the doctor who treated him was examined as P.W.2 and the Police officer who invested the case was examined as P.W.3 and got marked the documents as Ex.P1 to Ex.P17. On behalf of the respondent-insurance company, the Deputy Manager was examined as R.W.1 and got marked the documents as Ex.R1 and Ex.R2.

The Tribunal, after appreciating the oral and documentary evidence let in by the parties held that the claimant has sustained injuries in the road traffic accident occurred on 14-07-2009. However, while the claimant was admitted in the hospital, the history of injuries was mentioned as due to skid and fall from the motorcycle. Further, the MLC register maintained in the KIMS hospital also disclose the history of injuries due to fall from the motorcycle. Hence, the Tribunal held that the claimant is not entitled to any compensation, accordingly dismissed the claim petition. Being aggrieved by the said judgment and award, the claimant has filed this appeal.

Sri.A.S.Girish, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal dismissing the claim petition is contrary to law and also contended that due to the rash and negligent driving of the offending Car, the accident occurred on 14-07-2009. There was head-on collision between the motorcycle and the Car. Both the vehicles were damaged. The Police Officer who investigated the spot found that the motorcycle as well as the Maruthi car were available on the spot and he seized both the vehicles. The report of the Motor Vehicle Inspector discloses that the petrol tank, Speedo Meter Assembly, silencer of the two wheeler were damaged whereas the front bumper, front bonnet, front window screen, wiper and front panel of the Maruthi Car were also damaged. Hence, it is clear that there was head-on collision between the two vehicles. While the injured was taken to the hospital, somebody who accompanied him had given the history of injuries as skid and fall from the motorcycle and the same is not binding on him. The claimant is a North Indian, except Hindi and English, he do not know any other languages. His statement has been wrongly recorded by the hospital authorities. Further, at about 4.30 p.m., the Police Inspector of that area had recorded the statement of the claimant, in which, he has clearly stated that the accident occurred due to the head-on collision between the motorcycle as well as the Maruthi Car and he has sustained injuries. When two vehicles are involved in the accident, the question of skid and fall does not arise. The Tribunal without appreciating the oral and documentary evidence let in by the parties only on the basis of the medical report dismissed the claim petition which is contrary to law. In the accident, the claimant has sustained (a) lateral tibia condylar fracture ? tibia (b) lateral and medial collateral ligament tare of ? knee; (c) lateral medial tare with partial anterior cruciate ligament tare of ? knee. But the Tribunal has not awarded any compensation and dismissed the claim petition based on the report recorded in the MLC register. Hence, prayed for awarding just and fair compensation.

On the other hand, Sri.B.C.Seetharama Rao, learned counsel appearing for the second respondent argued in support of the judgment and award and contended that while the claimant was admitted to the hospital he was conscious and he himself made a statement before the doctor that the injury is due to skid and fall and the same has been recorded by the doctor in the MLC register. The doctor who was examined as P.W.2 in his evidence has admitted that whatever the claimant has stated before him, he has recorded the same in the medical register. Due to the negligence on the part of the claimant himself the accident had occurred. Hence the Tribunal has rightly rejected the claim petition and there is no infirmity or irregularity in the judgment and award passed by the Tribunal and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award, oral and documentary evidence.

The Tribunal has not disputed the occurrence of the accident and injuries sustained by the claimant in the road traffic accident occurred on 14-07-2009. The case of the claimant is that while he was proceeding in his motorcycle on Nagasandra main road, the driver of the offending car drove the same in a rash and negligent manner and dashed against the motorcycle, due to head-on collision between the two vehicles the accident had occurred and the claimant has sustained injuries. Immediately after the accident, initially he was admitted to Bharathi Nursing Home, after first aid, he was admitted to KIMS hospital, wherein he has undergone surgery and internal fixation has been made. Hence he filed a claim petition seeking compensation. In support of his claim, he has examined the doctor as P.W.2 and also examined the Investigating Officer as P.W.3. The Investigating Officer in his evidence has clearly admitted that within 15 minutes of the occurrence of accident, on receiving wireless message, he went to the accident spot and found both motorcycle as well as the Maruthi car on the spot, however the injured person was not there. He was shifted to Bharathi Nursing Home. He seized both the vehicles and went to Bharathi Nursing Home; from there he went to KIMS hospital and recorded the statement of the claimant wherein the claimant himself made a statement that the offending Maruthi car dashed against his two wheeler on Nagasandra Main Road. He had furnished the number of Maruthi Car also. P.W.2 doctor in his evidence has clearly mentioned that the claimant has sustained injuries in the road traffic accident occurred on 14-07-2009 and has undergone surgery, internal fixation has been made. During the course of examination, he stated that what is stated by the injured person is recorded in the medical records. Whereas the case of the insurance company is that while the claimant was admitted to the hospital, history of injury was mentioned as due to skid and fall from the motorcycle and even in the MLC record same thing has been mentioned. The doctor has not stated anything whether the claimant has made any statement or the person who brought the claimant. Except stray entry in the medical record, none of the documents reveal the cause of accident as due to skid and fall from the motorcycle. The jurisdictional police had recorded a statement of the injured person in KIMS hospital at about 4.30 p.m., wherein the claimant himself stated that due to head-on collision of motorcycle as well as the two wheeler, the accident had occurred and he has sustained injuries. In addition to that, the Investigating Officer had clearly noticed that front portion of the two wheeler as well as the Maruthi Car has been extensively damaged. Further, the Motor Vehicle Inspector also inspected both the vehicles and given report that front portion of both the vehicles has been damaged. Unless there being head-on collision, there cannot be damage to the front portion of both the vehicles. The statement of the Investigating Officer that the Maruthi Car has dashed against the hind portion of the two wheeler cannot be believed, whereas the claimant himself has made a statement that due to head-on collision, the accident has occurred, which is evident from the records available. Immediately after the accident, the claimant was shifted to Bharathi Nurshing Home and thereafter to KIMS hospital. The Tribunal without appreciating the oral and documentary evidence let in by the parties only on the basis of the entry made in the MLC register has held that the injuries sustained by the claimant is due to skid and fall from the motorcycle. Hence, the claimant is not entitled to any compensation which is contrary to law. Voluminous documents produced by the claimant as well as the evidence let in by the parties clearly reveals that the accident occurred due to head-on collision between the two wheeler as well as the Maruthi Car. The claimant has sustained injuries and he is entitled for compensation.

With regard to quantum of compensation is concerned, the Tribunal has not assessed the compensation on the basis of the injuries sustained by the claimant. The wound certificate issued by the doctor clearly discloses that the claimant has sustained (a) lateral tibia condylar fracture ? tibia (b) lateral and medial collateral ligament tare of ? knee; (c) lateral medial tare with partial anterior cruciate ligament tare of ? knee. The X-ray clearly disclose that there is fracture of tibial condylar. The claimant was inpatient for a period of 7 days and thereafter he had taken follow up treatment. He has undergone surgery, internal fixation has been made. At the time of accident, the claimant was aged about 21 years and he was student of ''B'' Pharmacy in Vishweshwaraiah Institute of Pharmacy, in addition to that he was doing part-time job in the Medical Stores. For the injuries he has sustained and suffering undergone, he is entitled for a sum of Rs.40,000/- towards pain and suffering. Further, he had submitted medical bills for a sum of Rs.52,500/- which are supported by prescriptions. Hence, he is entitled to a sum of Rs.52,000/- towards medical expenditure. Further, the doctor who treated him has assessed the disability to an extent of 30% to the left lower limb and 10% to the whole body. Hence, reckoning the income of the claimant as Rs.3,000/- p.m., applying the multiplier 18 and considering the disability to an extent of 10%, the claimant is entitled to a sum of Rs.64,800/- towards future loss of income. Further the claimant has to lead his remaining life with the disability of 10%, hence he is entitled to a sum of Rs.20,000/- towards loss of amenities of life. He was inpatient for a period of 7 days and thereafter, he had taken follow up treatment. Hence he is entitled to a sum of Rs.13,000/- towards conveyance, food and nourishment and attendant charges. In all, the claimant is entitled to the compensation of Rs.1,89,800/- which is rounded off to Rs.1,90,000/- with interest at the rate of 6% p.a. Accordingly, I pass the following: ORDER

The appeal is allowed in part. The judgment and award dated 09-03-2011 made in MVC No.*5685/2009 passed by the Motor Accident Claims Tribunal, Bangalore is modified and the claimant is entitled for compensation of Rs.1,90,000/- with interest at the rate of 6% p.a.

The insurance company is directed to deposit the entire compensation amount within a period of four weeks from today.