Bangalore District Court
Trisha K.N vs Oriental Insurance Co Ltd on 2 May, 2024
KABC020036312023
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 2nd DAY OF MAY - 2024
PRESENT: Sri. Aalok. A.N
(B.B.A. LL.B),
XXI ADDL. SCJ & ACMM
MEMBER - MACT, BENGALURU.
MVC. No.748/2023
Petitioner : Kumari. Trisha. K.N,
D/o Narasimhamurthy,
Aged about 11 years,
since minor represented by her father
and natural guardian
Sri. Narasimhamurthy,
S/o Dodda Narayanappa,
Aged about 36 years,
R/at: Budaganuru village,
Dibbur,
Chikkaballapura-562101.
(By Advocate: Smt. V. Malathi)
v/s
Respondent/s : 1. The Oriental Insurance Co.Ltd.,
"TP Hub", No.44/45, 4th Floor,
Leo Shopping Complex,
Residency Cross Road,
Bengaluru-560025.
SCCH-23 2 MVC-748/2023
Policy issued by its office in policy
No.421591/31/2023/3396
Valid from 17.10.2022 to 16.10.2027
(By Advocate: Sri. R. Purushothama)
2. Mr. Murali,
S/o Narasimhappa,
R/at : Budaganuru village,
Dibbur Post,
Angarekanahalli,
Chikkaballapura-562101.
(Owner of Motorcycle bearing
Reg.No.KA-40-EG-8832)
(Exparte)
JUDGMENT
This claim petition is filed under section 166 of the M.V. Act, seeking compensation for the injuries sustained in a road traffic accident.
2. Brief case of the petitioner in the nutshell:
It is the case of the petitioner that on ill fated day i.e.., on 22.01.2023 at about 7.00 p.m, when the petitioner was sitting infront of the house at Budaganur Village, at that time the rider of motorcycle bearing Reg.No.KA-40-EG-8832 rided the bike in a rash and negligent manner so as to endanger the human life had dashed against to the petitioner and due to tremendous impact the petitioner sustained grievous injuries all over her body. Immediately after the accident the petitioner was shifted to Government Hospital, Chikkaballapura and after first aid she SCCH-23 3 MVC-748/2023 was shifted to NIMHANS Hospital, Begaluru wherein she took treatment as an inpatient and undergone several examinations and she was discharged with an advice to regular follow-up treatment. The father of petitioner has spent Rs.2 lakhs towards medical and other allied expenses. It is specifically urged that, at the time of accident the petitioner was a student was studying in 6th Standard and because of accident unable to walk, or do any normal work and also unable to concentrate on her studies and also unable to attend the classes. Further it is specifically urged that, the accident happened because of rash and negligent driving of the rider of the motorcycle. The respondent No.1 and 2 are jointly and severally liable to pay compensation, as such prayed to grant a compensation amount.
3. Notice was duly served to respondent No.2, the respondent No.2 did not appear before this Tribunal. Hence he was placed exparte.
4. After service of notice, respondent No.1 spurred in rush to the Court by filing written statement rather objections to the main petition contending that the petition itself is not maintainable either law or on facts. The respondent No.1 admitting the issuance of insurance policy in respect of motorcycle bearing Reg.No.KA-40-EG-8832. However the liability if any is pleaded to be subject to the terms & conditions of the policy. Further the respondent No.2 has contended that, SCCH-23 4 MVC-748/2023 the owner and the concerned police have not complied the mandatory Section 134(c), 158(6), 149(2), 181 and 187 of M.V.Act. It is specifically urged that the petition is filed after lapse of 6 months as such this petition is not maintainable in the eye of law and empathically denied the occurrence, mode and manner of accident and also involvement of the vehicle in the accident. Further negligence on the part of the rider of its insured vehicle is denied. Per contra it is alleged that the unfortunate accident occurred on account of the sole negligence of the minor petitioner without having a proper lookout at the vehicular movement on the road. Without prejudice to the said contention it is averred that the rider of the motorcycle did not possess valid & effective DL as on the date of accident. Despite knowing the said fact the owner thereof had handed over its possession to such a driver. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to indemnify him. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
5. On the basis of above pleadings the following issues were framed :
ISSUES
1) Whether the petitioner proves that on 22.01.2023 at about 7.00 a.m., while she was sitting infront of the house at Budaganur village, Kasaba Hobli, Chikkaballapura District, at that time, the rider SCCH-23 5 MVC-748/2023 of motorcycle bearing Reg.No.KA-40-EG8832 drove the same in a rash and negligent manner and dashed to the minor petitioner, as a result the petitioner fell down and sustained grievous injury ?
2) Whether the petitioner is entitled for compensation as prayed for? If so, at what rate and from whom ?
3) What order or award ?
6. In support of case of petitioner the father / natural guardian of minor petitioner got examined as PW.1 and got marked Ex.P.1 to 13 documents. In order to prove the defence, respondent No.2 examined the Manager, Legal Claims of respondent No.1 insurance company as RW.1 and through him got marked Ex.R.1 & 2 documents.
7. Heard erudite counsel for the petitioner and respondent No.1 counsel on merits. Perused the entire materials placed on record.
8. This tribunal answers to the above issues are as follows :-
Issue No.1 : In the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following :
REASONS
9. ISSUE NO.1: The petitioner has knocked the doors of justice with a relief to grant a compensation of an amount to SCCH-23 6 MVC-748/2023 the tune of Rs.30,00,000/- together. The case of the petitioner lies an narrow compass as to claiming of compensation amount for injuries sustained by him in a Road Traffic Accident. Before dwelling into analyzing the disputed facts in issue it is relevant to have the birds eye of the case of petitioner in a nutshell.
10. It is the case of petitioner that, on 22.01.2023 at about 7.00 p.m, when the petitioner was sitting infront of the house at Budaganur Village, at that time the rider of motorcycle bearing Reg.No.KA-40-EG-8832 rided the bike in a rash and negligent manner so as to endanger the human life had dashed against to the petitioner and due to tremendous impact the petitioner sustained grievous injuries all over her body. Immediately after the accident the petitioner was shifted to Government Hospital, Chikkaballapura and after first aid she was shifted to NIMHANS Hospital, Begaluru wherein she took treatment as an inpatient and undergone several examinations and she was discharged with an advice to regular follow-up treatment. The father of petitioner has spent Rs.2 lakhs towards medical and other allied expenses. It is specifically urged that, at the time of accident the petitioner was a student was studying in 6 th Standard and because of accident unable to walk, or do any normal work and also unable to concentrate on her studies and also unable to attend the classes. Further it is specifically urged that, the accident happened because of rash and negligent driving of the rider of the motorcycle. The respondent No.1 and SCCH-23 7 MVC-748/2023 2 are jointly and severally liable to pay compensation, as such prayed to grant a compensation amount.
11. In support of case of petitioner, the father of petitioner himself stepped into the witness box and filed his affidavit-in-
lieu of oral examination-in-chief as PW1 and got marked Ex.P1 to Ex.P13 documents. In order to falsify the case of the petitioner and to substantiate the defense of the respondent No.2 counsel had cross-examined PW1 at length.
12. Repelling to the contentions urged by the petitioner, the respondent No.1 had attacked the case of the petitioner on various prisms known to fact and law. The first and foremost contention urged by the respondent No.1 is that, insured vehicle was not at all involved in the accident and the petition is filed after lapse of 6 months and that delay is fatal to the case of the petitioner. Further urged that there is no negligence on the part of the rider of the insured vehicle hence prayed to dismiss the petition. In support of these contentions the respondent No.1 got examined Assistant Manager of respondent No.1 company is examined as RW.1 and Ex.R1 & 2 are marked. In order to falsify the defence of the respondent No.1 and to substantiate the case of the petitioner the petitioner counsel has cross examined the RW.1 at length.
13. This issue revolves round the sphere and ambit as to the alleged rash and negligence on the part of the rider of SCCH-23 8 MVC-748/2023 offending vehicle. The factum of negligence has to be proved like any other matter in issue.
14. Before dwelling into analyzing the factum of alleged negligence it is relevant to have the conceptual aspects pertaining to factum of negligence. There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:
Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.
Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff.
The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her.
Damages: At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant's act.
Negligence means a breach of duty caused by omission to do something which has reasonable man guide by those SCCH-23 9 MVC-748/2023 consideration which ordinarily regulated conduct of human affairs would do which a prudent man would not do. In common prevalence negligence connoted to the want of proper care and the rashness conveys the idea of recklessness or the doing of an act without due consideration.
15. Reverting back to the factual matrix the accident happened on 22.01.2023 at 7.00 p.m. The criminal law was set into motion on 23.01.2023 at 2.00 p.m. There is absolutely no delay in setting the criminal law into motion. Based on Ex.P.2 FIS, the FIR was lodged as per Ex.P.1 for the offences punishable u/s 279 and 337 of IPC. One of the document which sheds light on the factum of the rash and negligent act is the spot Mahazar which is marked as Ex.P.3. On close perusal of said document it is clearly forthcoming that motor cycle had dashed the petitioner who was sitting near Chikka Narasimhappa House. This court will also does not loose sight of the fact that even the chargesheet as per Ex.P.6 was also filed as against the rider of the motorcycle. This factums itself speaks volumes as to the rash and negligent act of the rider of the vehicle.
16. It is necessary to reassert that in a claim for compensation filed under Section 166 of Motor Vehicles Act, 1988, the claimant is expected to prove the incident on basis of principle of preponderance of probabilities and the view taken by this SCCH-23 10 MVC-748/2023 Court is fortified by the decision rendered by the Hon'ble Supreme Court in Kusum and others V/s Satbir and others which is reported in 2011 SAR (CIVIL) 319. Further the Hon'ble Supreme Court in case of Bimla Devi and others v. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 530 has observed that, it is necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. Further the Hon'ble High Court of Karnataka in National Insurance Co. Ltd. Vs. Krishnappa and another reported in 2001 ACJ 1105, where the Hon'ble High Court of Karnataka considering the fact that the rider of the offending vehicle was not examined to prove any contributory negligence on the part of scooterist held that the accident had occurred due to rash or negligent driving by the rider of the offending van. Even here in this case the rider of the motor cycle is not examined to show that there was no negligence on his part and even otherwise the IO, as already observed, has clearly opined that the accident occurred only due to the fault of the rider of the motor cycle and he was charge sheeted.
17. Though PW.1 was cross examined at length by respondent No.1 counsel but nothing fatal was elicited so as to distrust the petitioner's version in his chief-examination. Even the chargesheet as per Ex.P.6 is also filed as against the rider of the motor cycle. When such the case absolutely there is no SCCH-23 11 MVC-748/2023 impediment in considering the version of the petitioner herein. The petitioner has successfully demonstrated there is a negligence on the part of the rider of the motor cycle. Consequently this tribunal hold that the accident is proved to have been caused due to the actionable negligence of the rider of the motor cycle. On assessing entire evidence the light of oral and documentary proof, the preponderance of probability tilts infavour of petitioner herein. Hence, this Tribunal answers Issue No.1 'In the Affirmative'.
18. ISSUE NO.2 : As per wound certificate marked at Ex.P.7 the petitioner has sustained the following injury :
Lacerated wound of 3 cm present over the left side of forehead swelling of left eye. It is needless to say that the injury is grievous in nature. The Discharge summary issued by NIMHANS Hospital, Bengaluru indicates that the petitioner was treated as an inpatient in the said hospital for the period from 22.01.2023 to 30.01.2023 (9 days in total).
19. The next friend of the minor petitioner has alleged that at the time of accident his daughter was studying in 6 th Standard and after the accident she could not attend to her classes for a period of 6 months and suffering from permanent disability. Further she sustained loss of academic year from this accident and due to the accident she cannot speak and listen properly, her eye power is also decreased, she lost her memory power and she is not active as she was prior to the accident and SCCH-23 12 MVC-748/2023 lost her golden bright future. However the father of petitioner has not produced any documentaryproof. So also he has not examined the doctor or produced the disability certificate to substantiate that she has become permanently disabled. Under such circumstances it cannot be accepted that she has suffered permanent disability. Therefore she is not entitled for compensation under the head 'permanent disability'. In this case the petitioner has produced medical bills at Ex.P11, the petitioner has spent Rs.21,778/- towards medical expenses. Nothing worthwhile was elicited during the course of his cross- examination, so as to doubt the genuineness of these bills. All these bills have been examined with care and are found to be correct. The petitioner has also produced the photographs of injured minor petitioner as per Ex.P.13. On close perusal of the photographs and Discharge summary it reflects that the petitioner has sustained head injury. The CT Bran-4 hrs showed left frontpotemporal EDH app. 50Cc with mass effect and midline shift to left x-ray cspine- no eo fracturedislocation x ray chest no eo fracture / dislocation. The discharge summary discloses that during the course of treatment she undergone left frontal craniotomy evacuation of EDH and elevation of depressed fracture with frontal sinus exteriorization. Anyhow, because the petitioner has not proved that she has any kind of disability, compensation cannot be awarded under conventional heads. Having regard to the nature of injuries sustained by the minor petitioner, the line of treatment and the medical expenses SCCH-23 13 MVC-748/2023 incurred by him, this tribunal is of the view that ends of justice would be met if the petitioner is awarded global compensation of Rs.1,50,000/-.
20. REGARDING INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% per annum is awarded it would meet the ends of justice.
21. While answering the issue No.1 this Tribunal comes to the conclusion that, accident occurred due to the negligence of the rider of motorcycle bearing registration No.KA-40-EG-8832. The respondent No.1 admitted the issuance of policy in respect of the offending vehicle. The respondent No.1 contended that at the time of the accident the rider of the motorcycle bearing registration No.KA-40-EG-8832 was not holding driving license, hence it is violation of terms and conditions of the policy as such they are not liable to pay compensation to the petitioner. In support of this contention the official of the respondent No.1 company is examined as RW.1. In his examination-in-chief he deposed as per contentions taken by them during the course of written statement. In the cross examination he deposed that he is giving evidence based on the police documents and he admitted the issuance of insurance policy and same is valid. He denied the suggestion that the respondent No.2 has not violated the any terms and conditions of the policy and he denied that he is deposing falsely. By perusing the chargesheet SCCH-23 14 MVC-748/2023 marked as per Ex.P6 it is clear that the charge sheet is filed against the rider for the offense punishable U/Sec.279, 338 and U/Sec 181, 187 of M.V.Act. The charges are leveled against the owner of the motorcycle i.e., respondent No.2. The respondent No.2 is the owner of the motorcycle and the said motorcycle was driven by the rider who does not have DL and he caused this accident. Hence it is clear that the respondent No.2 has violated the terms and conditions of the policy. Further it is clear that the respondent No.2 knowing well that the rider of the motorcycle was not holding driving license permitted Murali to ride the motorcycle. Hence it is also clear that the respondent No.2 has violated the policy condition.
22. The learned counsel for Respondent No.1 has relied on the Citation No.FAO-1081-2024 (O & M) in the case of Universal Sompo Gen.Ins.Co.Ltd. V/s Anuj Rani and other with respect to amendment of sec.150 and stated that the tribunal directed the appellant / Insurance company to pay the award amount to claimants and then to recover from driver / owner. Further it is to be noted that in the said case that the accident took place on 27.05.2022 and the amendment to Motor Vehicles Act came into force w.e.f 01.04.2022.
23. Reverting back to the factual matrix, this court also does not loose sight of the fact that, the accident had happened on 22.01.2023. The amendment to the MV ,Act came into force on 01.04.2022. the amendment to Sec.150 of MV Act makes it SCCH-23 15 MVC-748/2023 crystal clear that, if a person drives a vehicle without DL, than there is no question of making insurance company liable. Further the provision makes it clear that, there is no question of even pay and recovery also. This accident is subsequent to that of the amendment to the IMV Act. When such being the case, the Respondent No.1 cannot be made liable.
24. Further, the petitioner counsel has relied on a decision reported in (2018) 3 SCC 208 in the case of Pappu V/s Vinod Kumar Lamba, (2018) 9 SCC 650 in the case of Shamanna V/s Oriental Ins.Co.Ltd and contended that even though there is violation of terms and conditions of the policy the insurance company is liable to pay compensation to the petitioner. But the facts and circumstances stated in the said cases and present case on hand are entirely different. In the above said judgments it is held that in case of fake/invalid driving license the insurance company has to prove that the owner of the motor vehicle need to establish that the owner was aware of fact that license was fake/invalid and still permitted the driver to drive the vehicle, in that circumstances the insurance company is not liable to pay compensation, if the insurance company failed to prove that even the owner of the vehicle knowing that the driver vehicle was having fake/invalid driving license permitted the driver to drive the vehicle them insurance company is liable to pay compensation to the petitioner. But in the present case on hand the rider without DL was riding the motorcycle and SCCH-23 16 MVC-748/2023 caused this accident and it is not the case of fake/invalid driving license. Hence with due respect to the above said judgment same are not applicable to the present case on hand. Added more, those decisions are rendered prior to the amendment to Sec.150 of the MV Act. When such being the case, the ratio laid down therein cannot be made applicable to the instant case on hand.
25. On the other had respondent.no.1 has relied on the judgment of M.F.A.No.3297/2019 in the case of Smt.Adilakshmamma and Others Vs., Sri. Raju and other and contended that when the owner knowing that rider of the motorcycle was not holding driving license and handed over his motorcycle to the rider who is not having driving license then the owner is liable to pay compensation to the petitioner. In this case on hand also the respondent No.1 is the owner of the motorcycle and he is knowing well that the rider is not having driving license and permitted the rider to ride his motorcycle and the rider caused this accident, hence the respondent No.2 is not liable to pay compensation to the petitioner, but the respondent No.1 who is the owner of the motorcycle is liable to pay compensation to the petitioner. The said authority relied by the learned counsel for the respondent No.2 is applicable to the present case on hand.
26. Further on the same point of law the learned counsel for respondent no.1 has relied on the judgment in MFA-
SCCH-23 17 MVC-748/20236154/2019 in the case of Smt. Hemalatha @ Hema @ Hemavathi and others v/s Bajaj Allianz Gen.Ins.Co.Ltd, wherein the Hon'ble High Court of Karnataka after considering the judgment of the Apex Court in (I) Pappu V/s Vinod Kumar Lamba, (ii) Bishan Devi v. Surbakshi Singh (iii) Shamanna V/s Oriental Ins.Co.Ltd., (iv) Iffco Tokio Gen.Ins.Co.Ltd V/s Geeta Devi (v) National Ins.Co.Ltd., V/s Swarna Singh it clearly distinguished the factum of no DL and fake DL and observed as hereunder :
27. Learned Counsel for the appellants relied on the judgment of the Hon'ble Supreme Court in the case of Swaran Singh's, Pappu's, and Shamanna'scases referred to supra, to contend that, even if there is no driving license the insurer is liable to pay the damages to the claimants and recover the same from the owner of the vehicle. Those judgments referred to the principle of pay and recovery in case of breach of policy condition for disqualification of the driver to hold the license or holding of an invalid driving license. They did not relate to a case of no driving license at all.
28. Learned counsel for the appellants/claimants relied on Bishan Devi's case referred to supra to contend that even in case of no license also, the insurer is liable. Plain reading of the said judgment shows that in that case it was held that the insurer had failed to prove its defence that vehicle was driven by a person without license. In the present case the defence of the insurer that the offending vehicle was driven by a person having no license and the same is proved. Therefore, the said judgment is not applicable to the facts of the present case.
Reverting back to the factual matrix, respondent.No.2 the owner of the vehicle neither contested the petition by filing written statement nor adduced any evidence claiming that he did not consciously permit the rider to ride the vehicle. The said SCCH-23 18 MVC-748/2023 act of the respondent No.1 is a clear breach of fundamental breach of policy condition within the meaning of Sec149(2)(a)(ii) of MV Act. The respondent No.2 being the owner of the motorcycle bearing registration No.KA-40-EG-8832 is liable to pay compensation to the petitioner with interest at the rate of 6% p.a from the date of petition. Under such circumstances the insurance company cannot fastened with a liability of pay and recover that there is clear breach of conditions. The respondent No.2 is stated to be the owner of the offending vehicle is vicariously liable to pay the compensation awarded by this Tribunal. Hence this issue is answered as 'Partly in the Affirmative'.
27. ISSUE NO.3 : In view of the discussion made supra, this Tribunal proceeds to pass the following :
ORDER The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioner is entitled for compensation of Rs.1,50,000/- with interest at the rate of 6% p.a., from the date of claim petition till realization of the entire award amount.
The respondent No.2 / owner of motorcycle bearing registration No.KA-40-EG-8832 is liable to pay and directed to deposit the compensation SCCH-23 19 MVC-748/2023 amount within a period of one month from the date of award.
Out of the above said compensation amount awarded to the petitioner , 40% of the award amount with accrued interest shall be paid to natural guardian of the minor petitioner through NEFT/RTGS by way of E-payment on proper identification and due verification and further 60% of the award amount shall be kept in FD in favour of minor petitioner in any Nationalized or Scheduled bank till the minor attains her majority.
The petition is dismissed against respondent No.1/ Oriental Ins. Co. Limited.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by him, then corrected and pronounced by me in the open court on this the 2nd day of May - 2024) (Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s: PW.1 : Sri. Narasimha Murthy List of documents got marked for the petitioner/s:
Ex.P.1 FIR
Ex.P.2 Complaint
SCCH-23 20 MVC-748/2023
Ex.P.3 Spot Mahazar
Ex.P.4 Seizure panchanama
Ex.P.5 IMV Report
Ex.P.6 Charge Sheet
Ex.P.7 Wound certificate
Ex.P.8 Discharge summary
Ex.P.9 Aadhar card
Ex.P.10 Aadhar card
Ex.P.11 Medical bill
Ex.P.12 OPD Card
Ex.P.13 Photos
List of witnesses examined for the respondent/s:
RW.1 : Sri. C.S. Venugopal List of documents marked for the respondent/s:
Ex.R.1 Authorization letter Ex.R.2 True copy of Insurance policy (Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Bengaluru.